Chapter 1. Introduction

Notes 163

Notes

1A brief look at the titles of studies on sovereignty in the 1990s shows this interest. For instance, Joseph A. Camilleri and Jim Falk, The End of Sovereignty? The Politics of a Shrinking and Fragmenting World (Brookﬁeld: Elgar, 1992); Kaarle Nordenstreng and Herbert I. Schiller, eds, Beyond National Sovereignty: International Communication in the 1990s (Norwood: Ablex, 1992); Marianne Heiberg, ed., Subduing Sov- ereignty: Sovereignty and the Right to Intervene (London: Pinter, 1994); David J. Elkins, Beyond Sovereignty: Territory and Political Economy in the Twenty-First Century (Toronto: University of Toronto Press, 1995); Tom Farer, ed., Beyond Sovereignty: Collectively Defending Democracy in the Americas (Baltimore: Johns Hopkins University Press, 1996); Thomas Martin, ‘The End of Sovereignty’, Democracy and Nature 3(2) (1996); Thom Kuehls, Beyond Sovereign Territory (Minneapolis: Uni- versity of Minnesota Press, 1996); and Richard Kearney, ‘Beyond Sovereignty’, Index on Censorship, 27(5) (1998). 2 See Resolutions 682, 664 and 674 (1990), and 686 (1991), of the United Nations Security Council. 3 See Agreements on a Comprehensive Political Settlement of the Cambo- dia Conﬂict and Annex 1. UNTAC Mandate. 4Cynthia Weber, Simulating Sovereignty: Intervention, the State and Symbolic Exchange (Cambridge: Cambridge University Press, 1995). See also Thomas J. Bierstaker and Cynthia Weber, eds, State Sovereignty as Social Construct (Cambridge: Cambridge University Press, 1996). 5 F.H. Hinsley, Sovereignty, 2nd edn (Cambridge: Cambridge Univer- sity Press, 1986), p. 26. 6 Ibid., pp. 1–26. 7 Alan James, Sovereign Statehood: The Basis of International Society (Lon- don: Allen & Unwin, 1986), p. 8. 8Jens Bartelson, A Genealogy of Sovereignty (Cambridge: Cambridge Uni- versity Press, 1995), pp. 48–52. 9 Ibid., ch. 4. 10 Ibid., pp. 88–136, 215–20. 11 Weber, Simulating Sovereignty, pp. 34–9. 12 Ibid., p. 121. 13 Ibid., p. 127. 14 Cynthia Weber, ‘Reconsidering Statehood: Examining the Sovereignty/ Intervention Boundary’, Review of International Studies 10(3) (1992), p. 216.

163 164 Notes

15 Friedrich Nietzsche, On the Genealogy of Morals, trans. Walter Kaufmann (New York: Vintage, 1989), II-13. 16 Article 1 of the Montevideo Convention on Rights and Duties of States 1933. 17 See Bertrand de Jouvenel, Sovereignty: An Inquiry into the Political Good, trans. by J.F. Huntington (Cambridge: Cambridge University Press, 1957), p. 171. 18 See Walter W. Skeat, An Etymological Dictionary of the English Language, new edn (Oxford: Clarendon Press, 1924), p. 584. 19 See Andrew Vincent, Theories of the State (Oxford: Basil Blackwell, 1987), pp. 16–19. 20 Quentin Skinner, The Foundations of Modern Political Thought, II: The Age of Reformation (Cambridge: Cambridge University Press, 1978), pp. 353–4. 21 See Franz Susemihl and R.D. Hicks, The Politics of Aristotle (London: Macmillan, 1894), p. 381. 22 Charles Howard McIlwain, The Growth of Political Thought in the West (New York: Macmillan, 1932), pp. 80–1, 118. 23 See Hinsley, Sovereignty, pp. 27–60. 24 Ewart Lewis, Medieval Political Ideas (New York: Cooper Square, 1974), pp. 28–30. 25 Michael Wilks, The Problem of Sovereignty in the Later Middle Ages: The Papal Monarchy with Augustinus Triumphus and Publicists (Cam- bridge: Cambridge University Press, 1963), pp. 41–2. 26 Michel Foucault, The Order of Things (London: Routledge, 1966), p. xxiv. 27 Ibid., pp. 36–8. 28 Ibid., p. 57. 29 Ibid., p. 307. 30 Jean Bodin, On Sovereignty, ed. Julian Franklin (Cambridge: Cambridge University Press, 1992; originally published 1576), p. 1. 31 Ibid., p. 13. 32 Ibid., pp. 34, 46. 33 Ibid., p. 35. 34 Ibid., p. 46. 35 Ibid,. p. 50. 36 Thomas Hobbes, Leviathan, ed. C.B. Macpherson (London: Penguin, 1985; originally published 1651), p. 227. 37 Ibid., p. 81. 38 Foucault, The Order of Things, p. 308. 39 Ibid., pp. 166–302. 40 Jean-Jacques Rousseau, The Social Contract and Discourses, trans. by G.D.H. Cole (London: Everyman’s Library, 1968; originally published in French 1762), p. 240. 41 Ibid., p. 21. 42 Ibid., p. 175. 43 Ibid., pp. 20, 21. Notes 165

44 Ibid., pp. 14, 15 45 Vattel, The Law of Nations, I, translated from French (London: J. Newbery et al., 1760; originally published 1758), p. 1. 46 Ibid. 47 Ibid., p. 10. 48 Ibid., p. 19. 49 This relationship is similar to that of the two concepts of liberty formulated by Isaiah Berlin in ‘Two Concepts of Liberty’ (delivered in 1957), in Four Essays on Liberty (Oxford: Oxford University Press, 1992). Positive liberty is being one’s own master, liberty to. Nega- tive liberty is being without interference, liberty from. Nationalism is one of the most powerful positive liberty doctrines in the modern era. In order to achieve a ‘higher’ and ‘truer’ self, man must incor- porate himself into his nation. Constitutionalism is an attempt to set up rules for the protection of negative liberty. In order to protect individual rights, there must be fundamental rules that any political power cannot override. When man pursues his ‘higher’ and ‘truer’ self, the nation appears to be the highest ‘social whole’. It is a moral claim that the nation be the supreme holder of state sovereignty. When individual liberty is strongly protected, constitutional rules function to restrain any kind of public power. It is then a legal claim that constitutional rules have priority over the principle of sovereignty. Just as the two concepts of liberty coexist, the two types of sovereignty coexist. However, we can still trace tensions between the two belief systems. 50 Hersch Lauterpacht, ‘The Grotian Tradition in International Law’, The British Year Book of International Law 1946 (London, Henry Frowde and Hodder & Stoughton, 1946), pp. 19–20. See also Hedley Bull, ‘The Importance of Grotius in the Study of International Relations’, in Hedley Bull, Benedict Kingsbury and Adam Roberts, eds, Hugo Grotius and International Relations (Oxford: Oxford University Press, 1990). 51 Carl J. Friedrich, Constitutional Government and Democracy: Theory and Practice in Europe and America, 4th edn (Waltham: Blaisdell, 1968), p. 26. 52 Ibid., pp. 19–20. 53 See Martin Wight’s description of ‘Western values’ as ‘the constitutional tradition’ and the principle of ‘the golden mean’ represented by many Anglo-American thinkers, in Martin Wight, ‘Western Values in International Relations’, in Herbert Butterﬁeld and Martin Wight, eds, Diplomatic Investigations: Essays in Theory of International Politics (London: George Allen & Unwin, 1966), pp. 89–91. 54 See the phrase ‘international constitutionalism’ employed in Friedrich, Constitutional Government, p. 31. 55 Hugo Grotius, The Illustrious Hugo Grotius of the Law of Warre and Peace with Annotations (London: T. Warren, 1654), pp. 84–6. 166 Notes

Chapter 2. Classical Constitutional Notions of Sovereignty

1 Julian H. Franklin points out that in sixteenth and seventeenth centuries Europe Bodin’s notion of indivisible sovereignty was inﬂuential, but vigorously criticised. Franklin, ‘Sovereignty and the Mixed Con- stitutions: Bodin and His Critics’, in J.H. Burns, ed., The Cambridge History of Political Thought, 1450–1700 (Cambridge: Cambridge Uni- versity Press, 1991), p. 298. 2 J.P. Sommerville, Politics and Ideology in England, 1603–1640 (Lon- don: Longman, 1986), chs. 1, 2, 3. 3 Sir Edward Coke spoke in the debate on the Petition of Right: ‘I know that prerogative is part of the law, but “sovereign power” is no Parliamentary word in my opinion.’ Robert C. Johnson et al., eds, Commons Debates 1628, III (New Haven: Yale University Press, 1977), p. 495. Hedley Thomas, common lawyer, on the inviolability of private property and sovereignty, praised the ‘so ancient, honourable and happy state, so prudently compact of the sovereignty of the king and the liberty of the subject’. Elizabeth Read Foster, ed., Proceed- ings in Parliament 1610, II: House of Commons (New Haven: Yale University Press, 1966), pp. 195, 197. 4 Referring to the predecessors of post-Bodinian public lawyers, Lawson distinguished between ‘personal sovereignty’ and ‘real sovereignty’ or majesty. According to Lawson, while the king possesses personal sovereignty, real sovereignty is in the community. It is ‘the power of constitution’ in the sense that the consent of the community is the foundation of a commonwealth. George Lawson, Pacta Sacra et Civilis, ed. Conal Condren (Cambridge: Cambridge University Press, 1660), pp. 45–9. 5The contrast between ‘sovereignty in the Lockean tradition’, which includes Lawson and the American Federalists, and ‘sovereignty in Bodin, Hobbes, and Rousseau’ is discussed, for instance, in Julie Mostov, Power, Process, and Popular Sovereignty (Philadelphia: Temple Univer- sity Press, 1992), pp. 52–72. 6 See John Locke, Two Treatises of Government (Cambridge: Cambridge University Press, 1967; originally published 1690), pp. 326–7. 7 Ibid., p. 385. 8 Ibid., p. 445. 9 Ibid., p. 385. 10 Ibid., p. 424. 11 Ibid., p. 435. 12 Julian H. Franklin, John Locke and the Theory of Sovereignty: Mixed Monarchy and the Right of Resistance in the Political Thought of the English Revolution (Cambridge: Cambridge University Press, 1978), p. 124. 13 Raghuveer Singh, ‘John Locke and the Idea of Sovereignty’, Indian Notes 167

Journal of Political Science, 20(4) (1959), p. 328. Singh emphasises that Locke ‘belongs to the second tradition of Western political thought’ distinct from the ‘Hobbesian-Austinian’ tradition. 14 See Locke, Two Treatises, p. 391. The maxim ‘Salus Populi Suprema Lex’ was widely cited by seventeenth century pamphleteers. The maxim was the title of a book published in 1648, whose subtitle was The Peoples Safety is the Sole Soveraignty. The author wrote: ‘Is not the State at large the absolute King, and the King (so-called) the kingdoms Steward? Is not the King and all Magistrates the Kingdoms ministers and servants? Is it not their duty and glory to serve the Kingdom? . . . though he is above every one, yet not all; and common safety is the sole Sovereign.’ Salus Populi Solus Rex: The Peoples Safety is the Sole Soveraignty, or the Royalist Out-reasoned (1648), p. 2. Samuel Hunton had almost the same idea of ‘Salus soveraignty’ in The King of Kings: Or The Soveraignty of Salus Populi, over All Kings, Princes, and Powers Whatsoever (London: printed for the author, 1655). 15 James Parkinson, An Examination of Dr. Sherlock’s Book, entituled, the Case of the Allegiance due to Sovereign Powers, Stated and Resolved, etc. (London: David Hay, 1691), pp. 27–30. 16 Ibid., pp. 7, 32. 17 Judgement of Whole Kingdoms and Nations, Concerning the Rights, Power, and Prerogative of Kings, and the Rights, Priviledges, and Properties of the People (London: T. Harrison, 1710), pp. 3, 4, 8, 10. Andrew Michael Ramsay emphasised the necessity of sovereign authority. However, he also argued that absolute power was not arbitrary power, because ‘Sovereigns... have always a Law above them, in order to regulate them . . . and this Law is no other than the publick good.’ Andrew Michael Ramsay, An Essay upon Civil Government: Wherein is set forth, the Necessity, Origine, Rights, Boundaries, and Different Forms of Sover- eignty (London: Randal Minshull, 1722), pp. 38, 101–7. 18 Rules of Government: Or a True Balance between Sovereignty and Liberty (London: Bernard Lintott, 1710), pp. 7–8, 13–14. 19 The English Realm: A Perfect Sovereignty and Empire, and the King, a Compleat and Imperial Sovereign (London: 1717), pp. 16–22. 20 ‘Our Government was founded on the Principles of liberty, by a WISE, a FREE, and a BRAVE PEOPLE . . . who are the confessed Origin, or Spring of the SOVEREIGN . . . This will appear the most wise, the most equal, the most just, the most perfect Form of Government, that now subsists upon this Globe. A glorious Constitution!’ A Gentle- man of the Middle-Temple, A Critical Review of the Liberties of British Subjects (London: R. Watkins, 1750), pp. 11–12. 21 William Blackstone, The Sovereignty of Law: Selections from Blackstone’s Commentaries of the Law of England, ed. Gareth Jones (London: Macmillan, 1973; originally published 1765–9), p. 36. 22 Ibid., pp. 36–8. 23 Ibid., p. 94. 168 Notes

24 Ibid., pp. 57–61. 25 Adam Smith, The Wealth of Nations (London: Everyman’s Library, 1991; first published 1776), pp. 124, 251. 26 Jeremy Bentham, signifying the beginning of the modern age, rejected contract theory as a fiction and expanded a theory of will. Sovereignty derives from the will of subjects to pay obedience, as far as it is beneficial to them. Bentham’s supreme law is not ‘Salus Populi Suprema Lex’ but the utilitarian calculation of ‘the greatest happiness of the greatest number’. See Jeremy Bentham, Of Laws in General (London: Athlone Press, 1776). See also Bentham, Constitu- tional Code, ed. F. Rosen and J.H. Burns (Oxford: Clarendon Press, 1983; first published 1830), pp. 25, 45. 27 John Boroughs, The Soveraignty of the British Seas. Proved by Records, History, and Municipall Lawes of this Kingodome (London: Humphrey Moseley, 1651; written in 1633), p. 1. 28 See Sir Philip Medows, Observations concerning the Dominion and Sov- ereignty of the Seas: Being an Abstract of the Marine Affairs of England (London: S. Lowndes, 1689), pp. 5, 34. 29 Joseph Gander, A Vindication of a National-Fishery, to which is added the Sovereignty of the British-Seas (London: F. Coggan, 1699), pp. 49–55, 95. See also Gander, The Glory of Her Sacred Majesty Queen Anne, in the Royal Navy, and Her Absolute Sovereignty as Empress of the Sea, asserted and vindicated (London: printed for the author, 1703). 30 See Mathew Tindal, An Essay concerning the Laws of Nations and the Rights of Sovereigns (London: Richard Baldwin, 1694). 31 William Penn, An Essay towards the Present and Future Peace of Eu- rope: By the Establishment of an European Dyet, Parliament, or States (Gloucester: John Bellows, 1915; originally published 1693–4), p. 12. 32 Ibid., p. 18. 33 Ibid, p. 19. See also Temple’s original description of the ‘three degrees of soverainties’ in William Temple, Observations upon the United Provinces of the Netherlands (Oxford: Clarendon Press, 1972; originally published 1673), pp. 52–74. 34 Jeremy Bentham, An Introduction to the Principles of Morals and Legis- lation, ed. J.H. Burns and H.L. Hart (London: Athlone Press, 1970; originally published 1780), p. 296. 35 Ibid. It can be added that Bentham still only dealt with sovereigns and subjects under the title of international law, and did not men- tion ‘the sovereign state’. See Jeremy Bentham, ‘Principles of International Law’, in The Works of Jeremy Bentham, II (Edinburgh: William Tait, 1843), pp. 537–60. 36 An exploration of this issue in the context of International Rela- tions is Daniel H. Deudney, ‘The Philadelphian System: Sovereignty, Arms Control, and Balance of Power in the American States-Union, circa 1787–1861’, International Organization, 49(2) (1995). 37 For instance, a Pennsylvanian wrote: ‘That states without freedom Notes 169

should by principle grow out of a free state, is as impossible. . . . The sovereignty over the colonies must be limited.’ The Pennsylvanian Farmer, A New Essay on the Constitutional Power of Great-Britain over the Colonies in America (Philadelphia: J. Almon, 1774), p. 96. 38 The Constitution of the Several Independent States of America; The Dec- laration of Independence; The Articles of Confederation between the said States; The Treaties between his most Christian Majesty and the United States of America (Philadelphia: Francis Bailey, 1781), pp. 187, 190–1. 39 Ibid., p. 9. 40 It is true that Thomas Jefferson, the drafter of the Declaration, was more populistic than ‘Federalists’ like James Madison. For instance, Jefferson had the view that the federal constitution belonged only to the living generation, to which Madison was opposed. See Merrill D. Peterson, ‘Mr. Jefferson’s “Sovereignty of the Living Generation”’, Virginia Quarterly Review 52 (1976). 41 The Constitution of the Several Independent States of America, etc., p. 193. Separate sovereignty of each State was never questioned before the establishment of the US Constitution. See C. Perry Patterson, ‘State Sovereignty v. National Sovereignty prior to 1789’, New York University Law Quarterly Review 24(3) (1949). 42 See Issac Kramnick, ‘Editor’s Introduction’, in James Madison, Alexander Hamilton and John Jay, The Federalist Papers (London: Penguin, 1987), pp. 16–28. 43 Quoted in Bernard Schwartz, A Commentary on the Constitution of the United States, Part I: The Powers of Government (New York: Macmillan, 1963), p. 33. 44 While Madison had a vision of the Lockean limited liberal state to protect individual rights, Hamilton’s personal view envisaged a he- roic state which could exert its power in international ﬁelds. He deplored, for instance, the weakness of the Confederacy and stated: ‘Our ambassadors abroad are the mere pageants of mimic sovereignty.’ Madison et al., The Federalist Papers, p. 146. 45 Ibid., pp. 257–9, 262, 277, 365. 46 Ibid., pp. 220, 222. 47 Ibid., pp. 293–4. 48 Quoted in Martin B. Hickman, ‘Double Majesty: Madison’s Middle Ground’, in Dalmas H. Nelson and Richard L. Sklar, eds, Toward a Humanistic Science of Politics (Lanham, MD: University Press of America, 1983), pp. 361, 375. 49 Madison et al., The Federalist Papers, p. 297. 50 ‘Letter from the Constitutional Convention to the President of Con- gress’, in Bernard Bailyn, ed., The Debate on the Constitution: Federalist and Antifederalist Speeches, Articles, and Letters during the Struggle over Ratiﬁcation, Part I (New York: The Library of America, 1993), p. 965. In the Constitutional Convention of 1787 James Wilson from Penn- sylvania used almost the same expression. See James Madison, Notes 170 Notes

of Debates in the Federal Convention of 1787 and their Relation to a More Perfect Society of Nations (New York: Oxford University Press, 1987), pp. 97–8. See also Jonathan Elliot, ed., The Debates in the Several State Conventions on the Adoption of the Federal Constitution, I, 2nd edn (Philadelphia: J.B. Lippincott, 1901), pp. 402–4. 51 For instance, Luther Martin stated in the Constitutional Convention that ‘the States like individuals were in a State of nature equally sovereign & free . . . the States being equal cannot treat or confederate so as to give up an equality of votes without giving up their liberty.’ On the other hand, Hugh Williamson insisted that ‘if the States were equally sovereign now, and parted with equal propor- tions of sovereignty, that they would remain equally sovereign’. Madison, Notes, pp. 202, 204. Rufus King spoke of ‘the phantom of State sovereignty’ in contrast to ‘substantial good’ of individual rights. King instead asserted: ‘The magistracy in Congress possesses the sovereignty.’ Ibid., pp. 152, 228; Elliot, ed., Debates, p. 426. The Supreme Court in the case of Cohens v. The State of Virginia in 1821 con- firmed that ‘the sovereignty of the States is surrendered in many instances where the surrender can only operate to the benefit of the people’. Quoted in Allen Johnson, ed., Readings in American Consti- tutional History 1776–1876 (Boston: Houghton Mifflin, 1912), p. 288. 52 The Impartial Examiner, ‘To the Free People in Virginia’, Virginia Independent Chronicle, 20 February 1788; quoted in Harbert J. Strong, ed. The Complete Anti-Federalist (Chicago: University of Chicago Press, 1981), vol. V, p. 178. The same apprehension, a solecism of politics, was expressed in ‘letters of Centinel’ and ‘The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to their Constituents’, ibid., 2-7-99, p. 169, 3-11-23, p. 155, and ‘Samuel Adams to Richard Henry Lee, Boston, December 3, 1787’ in Bailyn, ed., The Debate, p. 446. Agrippa warned ‘all the horrors of divided sovereignty, not knowing whether to obey the Congress or the state’. ‘Letters of Agrippa’, in Strong, ed., The Complete Anti-Federalist, vol. IV, p. 79. 53 An Officer of the late Continental Army, ‘To the Citizens of Phila- delphia’, in ibid., vol. III, p. 93. 54 A Farmer, ‘The Fallacies of the Freeman’, Freeman’s Journal, 16 and 23 April 1788, ibid., vol. III, p. 190. 55 Patrick Henry, ‘Speech in the Virginia Ratifying Convention’, 4 June 1788, ibid., vol. V, p. 211. See a similar objection in Elliot, ed., De- bates, vol. IV, pp. 15–16, 23–4. 56 ‘Essays by Cincinnatus’, in Strong, ed., The Complete Anti-Federalist, vol. VI, p. 26. 57 The tenth amendment stipulates: ‘The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states, respectively, or to the people.’ See Elliot, ed., Debates, pp. 319–39. Notes 171

58 Ibid., p. 336. 59 ‘Yates’s Minutes’, ibid., p. 461. Madison also said: ‘There is a grada- tion of power in all societies, from the lowest corporation to the highest sovereign.’ Madison, Notes, p. 213. 60 ‘Yates’s Minutes’, in Elliot, ed., Debates, pp. 417, 419. See also Madi- son, Notes, pp. 129, 132, 133. 61 Elliot, ed., Debates, vol. IV, p. 528. 62 Quoted in J. Mark Jacobson, The Development of American Political Thought (New York: Century, 1932), p. 410. 63 The Supreme Court in the case of Chisholm, Executor, v. Georgia, 1793, quoted in Johnson, ed., Readings, p. 140. It also enumerated in the case of Ware v. Hylton (1796): ‘The Several States retained all internal sovereignty and .. . Congress properly possessed the great rights of external sovereignty.’ Quoted in C.E. Merriam, History of the Theory of Sovereignty since Rousseau (New York: Columbia University Press, 1900), p. 163. ‘To the constitution of the United States,’ said Justice Wilson in a 1793 case, ‘the term sovereign is totally unknown.’ Quoted in Schwartz, A Commentary, p. 31. The US Supreme Court once called the States ‘quasi sovereign’. Quoted ibid., p. 32. 64 Joseph Story, Commentaries on the Constitution of the United States (Boston: Little, Brown, 1891; originally published 1833), p. 149. 65 Ibid., pp. 151–2. 66 Nathaniel Chipman, Principles of Government: A Treatise on Free Insti- tutions including the Constitution of the United States (Burlington, VT: Edward Smith, 1833), p. 137. 67 Edward D. Mansfield found the mark of sovereignty in self-government: ‘for a state, or nation, to be sovereign, it must govern itself, without any dependence upon another power.’ Then he supported the doctrine of divided sovereignty. Edward D. Mansfield, The Political Grammar of the United States (New York: Harper & Brothers, 1834), p. 13. 68 Chipman, Principles of Government, p. 144. 69 Ibid., p. 273. 70 Frederick Grimke, The Nature and Tendency of Free Institutions, ed. John W. Ward (Cambridge, MA: Belknap Press of Harvard University Press, 1968; first published 1848), p. 246. 71 Ibid., pp. 248, 251. As regards the American constitutional restraint of the sovereign people, see Horst Dippel, ‘The Changing Idea of Popular Sovereignty in Early American Constitutionalism: Breaking Away from European Patterns’, Journal of the Early Republic 16(1) (1996). 72 Alexis de Tocqueville, Democracy in America, trans. George Lawrence (London, Fontana, 1995; first published in French 1835), p. 123. 73 Ibid., p. 164. 74 Ibid., pp. 61, 143, 164, 166, 167. 75 Ibid., p. 260. 76 Ibid., p. 70. 77 See the US Constitution, Article I, Section 8, Article VI. 172 Notes

Chapter 3. Modern National Notions of Sovereignty

1 See John McDonald, Rousseau and the French Revolution 1762–1791 (London: Athlone Press, 1965), p. 94. 2 See Merriam, History of the Theory of Sovereignty, pp. 52–62, and Harold J. Laski, Authority in the Modern State (New Haven: Yale University Press, 1919), pp. 123–88. 3 Joseph de Maistre, ‘Study on Sovereignty’, in The Works of Joseph de Maistre, trans. Jack Lively (London: George Allen & Unwin, 1965; written 1794–5), pp. 94, 114, 98–9, 112, 120. See also Joseph de Maistre, Considerations on France, trans. Richard A. Lebrun (Montreal: McGill- Queen’s University Press, 1974). 4Maistre, ‘Study’, pp. 99, 107–9. A kind of the ‘constitutional restraint’ should be maintained by the Pope according to Maistre. See Joseph de Maistre, The Pope: His Relations with the Church, Temporal Sover- eignties, Separated Churches and the Cause of Civilisation, trans. Æneas McDawson (London: C. Dolman, 1850). Catholic theories do not inevitably end up with reactionary conservatism once the needs in the modern age are met. See, for instance, Félicité R. de Lamennais, The Book of the People, trans. J.H. Lorymer (London: H. Hetherington and J.H. Lorymer, 1838), pp. 32–4. 5Victor Cousin, Cours d’histoire de la philosophie morale au dix-huitième siècle (Paris: Librairie de Ladrange, 1839), pp. 297–300. See also Merriam, History of the Theory of Sovereignty, pp. 75–7. 6François Guizot, Du gouvernement de la France depuis la Restauration et du ministère actuel, 4th edn (Paris: Éditeur des Fastes de la Gloire, 1821), p. 201. 7François Guizot, Of Democracy in Modern Societies (London: Henry Hooper, 1838), p. 18. 8François Guizot, History of the Origin of Representative Government in Europe, trans. Andrew R. Scoble (London: Henry G. Bohn), p. 74. 9François Guizot, ‘The History of Civilization in Europe’, in Stanley Mellon, ed., Historical Essays and Lectures (Chicago: University of Chicago Press, 1972), p. 234. 10 Maistre, ‘Study’, p. 128. 11 ‘Treaty between Austria, Prussia, and Russia. Signed at Paris, 18th (26th) September, 1815’, in René Albrecht-Carrié, The Concert of Eu- rope (London: Macmillan, 1968), p. 34. 12 See Immanuel Kant, The Metaphysical Elements of Justice, trans. John Ladd (New York: Macmillan, 1965), pp. 109–13. 13 See G.W.F. Hegel, Elements of the Philosophy of Right, trans. H.B. Nisbet (Cambridge: Cambridge University Press), p. 277. 14 Johann C. Bluntschli, Allgemeines Staatsrecht (Munich: Verlag der Literarisch-Artistischen Anstalt, 1852), p. 340. 15 It was ordained by the Act of Confederation of 1815 and the Final Act of Vienna of 1820. See Rupert Emerson, State and Sovereignty in Notes 173

Modern Germany (New Haven: Yale University Press, 1928), pp. 20–1. For the nationalistic tone that can also be seen in the debate by German liberals in the Frankfurt Parliament in 1848, see ibid., pp. 8–9. 16 The constitutions of German states enacted between 1815 and 1871 were all declared only in the name of the sovereign kings and other ‘nobles’. See Edwin H. Zeydel, ed., Constitutions of the German Empire and German States (Washington, DC: Government Printing Ofﬁce, 1919). 17 See Merriam, History of the Theory of Sovereignty, pp. 185–216. 18 See Heinrich von Treitschke, Politics, trans. Arthur James Balfour, I (London: Constable, 1916), pp. 13–25. 19 Ibid., pp. 26–30. 20 John Austin, The Austinian Theory of Law, ed. Jethro Brown (Lon- don: John Murray, 1931); originally published as The Province of Jurisprudence Determined, 1832), pp. 96–7. 21 Ibid., p. 126. 22 Ibid., pp. 198–9. 23 As an example of criticisms of traditional constitutionalism from the standpoint of social evolutionism in the nineteenth century, see Herbert Spencer, ‘The Man versus the State’ (originally published 1884), in Spencer, Political Writings, ed. John Offer (Cambridge: Cam- bridge University Press, 1994), pp. 151–2. 24 A.V. Dicey, Lectures Introductory to the Study of the Law of the Consti- tution (London: Macmillan, 1885), p. 36. 25 Dicely, The Law of the Constitution, 3rd edn (1889), pp. 65–6. 26 Ibid., pp. 64–70. It should be noted that as a result of the three electoral reforms undertaken in the nineteenth century, the number of electors increased from 4000 in Austin’s time to 5 000 000 in 1885. 27 The method of dividing legal and political sovereignty was quite common among publicists at the end of the nineteenth century, probably because they had to reconcile governmental power with the rising power of people outside the traditional constitutional framework. See, for instance, James Bryce, Studies in History and Jurisprudence, II (Oxford: Clarendon Press, 1901), pp. 69–71; Thomas Hill Green, ‘Lectures on the Principles of Political Obligation’, in R.L. Nettleship, ed., Works of Thomas Hill Green, II (London: Longmans, Green, 1886), pp. 395–8; David G. Ritchie, ‘On the Conception of Sovereignty’, Annals of the Academy of Political and Social Science 1(3) (1891), p. 393; and William Sharp M’Kechnie, The State and the Individual (Glasgow: James MacLehose, 1896), pp. 127–30. 28 Dicey, The Law of the Constitution, pp. 85–124. 29 Ibid., pp. 179–216. 30 Dicey, The Law of the Constitution, 8th edn (1915), pp. lix, xliii. By contrast, Henry Sidgwick was more willing to admit that ‘the elec- torate was sovereign’. Henry Sidgwick, The Elements of Politics (London: Macmillan, 1891), p. 628. 174 Notes

31 See Thomas Hill Green, ‘Lectures’, and Bernard Bosanquet, The Philosophical Theory of the State (London: Macmillan, 1899). 32 See, for instance, T.J. Lawrence, A Handbook of Public International Law (Cambridge: Deighton, Bell, 1885), p. 3. By contrast, an Ameri- can lawyer stated that the word ‘state’ was ‘not satisfactory, because it might mean parts of territory’. Herbert W. Bowen, International Law (New York: G.P. Putnam’s Sons, 1896), p. 3. 33 ‘A State may consist of one or more people or nations.’ ‘A State includes all its colonies and dependencies.’ Leone Levi, International Law with Materials for a Code of International Law (London: Kegan Paul, Trench, 1887), p. 80. 34 Archer Polson, Principles of the Law of Nations, with Practical Notes (London: John Joseph Grifﬁn, 1848), pp. 2–3. 35 Robert Phillimore, Commentaries upon International Law, I (London: William G. Benning, 1854), p. 10. 36 William O. Manning, Commentaries on the Law of Nations, rev. Sheldon Amos (London: n.p., 1839), pp. 91–4. 37 Ibid., pp. 100–1. 38 Unlike constitutional law, however, in international relations where no legislative authority exists, the legal sphere may be more revolutionary. 39 The ‘Great Powers of Europe have obtained such a position of authority that they are able to exercise predominance over other States. This position is now well recognised.’ Sherston Baker, First Steps in International Law (London: Kegan Paul, Trench, Trübner, 1899), p. 46. See also Thomas A. Walker, The Science of International Law (London: C.J. Clay, 1893), pp. 37, 41, and Walker, A Manual of Public Inter- national Law (Cambridge: Cambridge University Press, 1895), pp. 11–13. Lawrence distinguished between ‘the Great Powers’ and ‘Ordinary Independent States’ among ‘sovereign states’ as distinct from ‘part- sovereign states’. Lawrence, A Handbook, pp. 18–21. See also Lawrence, The Principles of International Law, 3rd edn (Boston: D.C. Heath, 1905), pp. 55–77. 40 John Westlake, The Collected Papers of John Westlake on Public Inter- national Law, ed. L. Oppenheim (Cambridge: Cambridge University Press, 1914), pp. 92–3. 41 John Westlake, Chapters on the Principles of International Law (Cam- bridge: Cambridge University Press, 1894), pp. 86–7. 42 Lassa Francis Lawrence Oppenheim, International Law: A Treatise, I: Peace (London: Longmans, Green, 1905), pp. 99–100. 43 Ibid., pp. 100–1. 44 Ibid., pp. 99–102. See also Horace S. Seal, Sovereignty and the State: Their Nature and Relation (London: Watts, 1907), pp. 7–10. 45 Ibid., pp. 103–7. 46 Ibid., p. 108. 47 Quoted in Dexter Perkins, A History of the Monroe Doctrine (Boston: Little, Brown, 1963), p. 175. Notes 175

48 See Jacobson, The Development, p. 411. 49 Grimke insisted that, although sovereignty could be alienable and divisible, the States held the right to secede. See Grimke, The Nature and Tendency, pp. 503–17. On the other hand, Edward Everett and J.S. Wright argued that even if the States were sovereign, their sovereignty would not authorize secession. See Edward Everett, ‘Intro- ductory Address’, in Frank Moore, ed., The Rebellion Record: A Diary of American Events, I (New York: G.P. Putman, 1861), and J.S. Wright, Citizenship Sovereignty (Chicago, 1862), p. 72. A strong renunciation of secession as ‘a treason against the Union by certain individuals’ is found in Emory Washburn, Can a State Secede? Sovereignty in its Bearing upon Secession and State Rights (Cambridge, MA: Dakin and Metcalf, 1865). 50 Daniel Webster, The Papers of Daniel Webster: Speeches and Formal Writings, I: 1800–1833, ed. Charles M. Wiltse (Hanover: University Press of New England, 1986), pp. 589–92. See also ‘Second Reply to Hayne’, 26–7 January 1830, in which Webster argued that ‘the people’s Constitution, the people’s government, made for the people, made by the people, and answerable to the people’. 51 See, for instance, John L. Motley, ‘Causes of the Civil War: A Letter to the London Times’, in Moore, ed., The Rebellion Record, Docu- ments and Narratives, p. 211. 52 John C. Calhoun, ‘Speech on the Revenue Collection [Force] Bill’, in Union and Liberty: The Political Philosophy of John C. Calhoun, ed. Ross M. Lence (Indianapolis: Liberty Fund, 1992), pp. 433–4. John C. Calhoun, ‘A Discourse on the Constitution and Government’, written shortly before 1850, in Union and Liberty, provides a system- atic explanation of the same point. 53 The examples of populist tones on the North and South sides respectively include William D. Porter, State Sovereignty and the Doctrine of Coercion (Charleston, SC: Evans & Cogswell’s Steam-Power Presses, 1860), and John Jay, ‘An Address delivered at Mount Kisco, Westchester County, New York, on the 4th of July, 1861, by John Jay’, in Moore, ed., The Rebellion Record, Documents and Narratives, p. 381. See also John Jay, New Plottings in Aid of the Rebel Doctrine of State Sovereignty (New York: American News Company, 1864). 54 Abel P. Upshur, A Brief Enquiry into the True Nature and Character of our Federal Government: Being a Review of Judge Story’s Commentaries on the Constitution of the United States (Philadelphia: John Campbell, 1863), p. 78. 55 See the ordinances of secession by the Southern States in 1861 which conﬁrmed sovereignty of each State in Moore, ed., The Rebellion Record, Documents and Narratives, pp. 3–27, 70, 203, 260–4. ‘Constitution for the Provisional Government of the Confederate States of America’ and ‘Constitution of the Confederate States of America’ of 1861 expressed each state as ‘sovereign and independent’. See Provisional 176 Notes

and Permanent Constitutions of the Confederate States (Richmond: Ritchie & Dunnavant, 1861). 56 See Jefferson Davis, The Rise and Fall of the Confederate Government (London: Longmans, Green, 1881), and Alexander H. Stephens, A Constitutional View of the Late War between the States (Philadelphia: National Publishing Company, 1868). 57 ‘The government of the United States is no longer a government of a confederated republic, but of a consolidated democracy.... “The right divine to rule in kings” is only transferred to their majority.’ ‘Sovereignty of South Carolina/ The Address of the People of South Carolina, assembled in Convention, December, 1860, to the People of the Slaveholding States of the United States/ Dec. 29, 1860’ in Moore, ed., The Rebellion Record, Documents and Narratives, pp. 396– 400. It can be added that Calhoun was not committed to the doctrine of secession. According to his theory of ‘the concurrent, or constitutional majority’ in opposition to ‘the numerical, or absolute majority’, the principle of constitutional governments was compromise, while that of absolute governments was force. See Calhoun, ‘A Disquisi- tion on Government’, written shortly before 1850, in Union and Liberty, pp. 5–30. 58 ‘The President Reply/ Washington City, December 30, 1860’, in Moore, ed., The Rebellion Record, Documents and Narratives, p. 12. 59 ‘President Buchanan’s Message of December 3, 1860,’ in Johnson, ed., Readings, p. 456. 60 ‘Inaugural of Abraham Lincoln’, in Moore, ed., The Rebellion Record, Documents and Narratives, p. 38. John L. Motley also insisted that sovereignty was the will of the people expressed by the majority. Ibid., p. 211. Lincoln’s ‘only true sovereign majority’ exists, of course, only in the Union. He elsewhere proclaimed: ‘What is a “sovereignty” in the political sense of the term? Would it be far wrong to deﬁne it “a political community without a political superior”? Tested by this, no one of our States, except Texas, ever was a sovereignty; and it even Texas gave up the character on coming into the Union’. ‘Presi- dent Lincoln’s Message of July 4, 1861’, in Johnson, ed., Readings, p. 470. 61 See Thomas M. Cooley, A Treatise on the Constitutional Limitations which rest upon the Legislative Power of the States of the American Union (Boston: Little, Brown, 1868), p. 2. 62 For instance, see P.C. Centz, The Republic of Republics; or American Federal Liberty, 4th edn (Boston: Little, Brown, 1865), pp. 305–24, and John C. Hurd, The Theory of our National Existence, as shown by the Action of the Government of the United States since 1861 (Boston: Little, Brown, 1881), pp. 112–15. 63 O.A. Brown, The American Republic: Its Constitution, Tendencies, and Destiny (New York: P. O’Shea, 1866), p. 219. Notes 177

64 John Alexander Jameson, The Constitutional Convention: Its History, Powers, and Modes of Proceeding (New York: Charles Scribner, 1867), p. 54. 65 See Francis Lieber, ‘Amendments Proposed for the Constitution of New York, 1867’, in Contributions to Political Science, including Lec- tures on the Constitution of the United States and Other Papers, being volume II of his Miscellaneous Writings (Philadelphia: J.B. Lippincott, 1881), p. 216. The third Constitution of New York adopted in 1846 stipulated that the ‘people of this State’ had ‘their right of sovereignty’. The Constitution of the Several States of the Union and United States (New York: A.S. Barnes, 1852), p. 144. 66 John Norton Pomeroy, An Introduction to the Constitutional Law of the United States (New York: Hurd & Houghton, 1868), p. 27. 67 Frank Bufﬁngton Vrooman observed: ‘The Civil War was the ultimate amendment to the Constitution.’ Vrooman, The New Politics (New York: Oxford University Press, 1911), p. 255. William B. Green argued in 1868 that ‘the United States assumed sovereignty in the strength of these powers’. See Greene, The Sovereignty of the People (Boston: A. William, 1868), pp. 5–6, 11. Lawrence Lowell stipulated that ‘the extent of sovereign power’ was ‘a pure matter of fact’. Lowell, ‘The Limits of Sovereignty’, Harvard Law Review 2(2) (1888). Franklin Henry Giddings provided a sociological search for the emergence of ‘sovereignty’, as if it were a physical object. See Giddings, The Prin- ciples of Sociology: An Analysis of the Phenomena of Association and Social Organization (New York: Macmillan, 1896), pp. 285, 314. See also Giddings, ‘Sovereignty and Government’, Political Science Quar- terly 21(1) (1906), p. 12. 68 E. Mulford, The Nation: The Foundation of Civil Order and Political Life in the United States (New York: Hurd & Houghton, 1872), pp. 72–3. 69 Ibid., pp. 76, 113–14, 135. 70 John A. Jameson, ‘National Sovereignty’, Political Science Quarterly 5(2) (1890), p. 198. 71 Ibid., pp. 209–10. 72 Ibid., p. 202. The same logic can be found in Frank S. Hoffman, The Sphere of the State or the People as a Body-Politic, 3rd edn (London: G. P. Putman’s Sons, 1909; ﬁrst published 1894), p. 4, and John W. Burgess, Political Science and Comparative Constitutional Law, I (Bos- ton: Ginn, 1896), pp. 51–3. 73 Westel Woodbury Willoughby, An Examination of the Nature of the State: A Study in Political Philosophy (New York: Macmillan, 1896), p. 195. 74 Ibid., p. 209. 75 Ibid., p. 217. 76 Henry Wheaton, Elements of International Law, I (London: B. Followes, 1836), p. 62. 178 Notes

77 It is worth noting here that as late as the year of the treaty of Versailles the Department of State of the United States issued a confidential pamphlet written by Willoughby and C.G. Fenwick on the various types ‘of restricted sovereignty and of colonial autonomy’. See Westel Woodbury Willoughby and C.G. Fenwick, Types of Restricted Sover- eignty and of Colonial Autonomy (Washington, DC: Government Printing Office, 1919). 78 See Wheaton, Elements, p. 54. 79 Theodore D. Woolsey, Introduction to the Study of International Law (Boston: James Munroe, 1860), pp. 83–4. 80 H.W. Halleck, International Law; or Rules regarding the Intercourse of States in Peace and War (New York: Van Nostrand, 1861), pp. 65, 97–8. 81 George G. Wilson and George F. Tucker, International Law, 5th edn (London: George G. Harrap, 1909; first published 1901), p. 45. 82 Cushman K. Davis, A Treatise on International Law including American Diplomacy (St Paul, MN: Keefe-Davidson, 1901), pp. 45–6. George B. Davis wrote: ‘a state possesses a certain number of sovereign rights and powers. These rights are possessed in precisely the same number and to the same degree by every sovereign state.’ Davis, The Ele- ments of International Law, 3rd edn (New York: Harper, 1908), pp. 35–6. According to Charles H. Stockton, ‘Legally all sovereign states within the purview of international law are equal, that is, equal in their rights and in their obligations, equal in their sovereignty and in their independence.’ Stockton, Outlines of International Law (New York: Charles Scribner’s Sons, 1914), pp. 62–3. 83 James Brown Scott, ‘Introduction’, in William Ladd, An Essay on a Congress of Nations (New York: Oxford University Press, 1916), p. xxxviii. 84 William Ladd, Essay on a Congress of Nations (Boston: Whipple & Damrell, 1840), pp. 8–10. 85 Ibid., p. 112. An example of this way of thinking in the twentieth century is Thomas W. Balch, A World Court in the Light of the United States Supreme Court (Philadelphia: Allen, Lane & Scott, 1918), p. 6. 86 See, for instance, Hannis Taylor, A Treatise on International Public Law (Chicago: Callaghan, 1901), pp. 184–5. 87 See Robert T. Crane, The State in Constitutional and International Law (Baltimore: Johns Hopkins University, 1907). 88 Amos S. Hershey, The Essentials of International Public Law (New York: Macmillan, 1912), p. 100. 89 Edwin Maxley, International Law with Illustrative Cases (St Louis: F.H. Thomas, 1906), p. 85. Notes 179

Chapter 4. The Rise of International Constitutionalism

1William H. Taft, ‘Address at San Francisco, Feb. 19, 1919’, quoted in Theodore Marburg and Horace E. Flack, eds, Taft Papers on League of Nations (New York: Macmillan, 1920), p. 148. Theodore Marburg also stated: ‘Sovereignty is shown to be just so much liberty of action on the part of States as is consistent with their obligation, under international law and morality, to permit of the exercise of equal sovereignty of liberty of action by their sister States . . . and he who wants more is really seeking the license selﬁshly to disregard these obligations – to reject, for example, the just judgements of a properly constituted tribunal – which is the German conception of sovereignty.’ Marburg, ‘Introduction’, ibid., p. vii. The former Secretary of State Senator Elihu Root also stated: ‘The change involves a limitation of sovereignty, making every sovereign state subject to the superior right of a community of sovereign states to have peace preserved. The acceptance of any such principle would be fatal to the whole Prussian theory of the state and of government.’ Quoted in Alfred Zimmern, The League of Nations and the Rule of Law, 1918–1935 (London: Macmillan, 1939), p. 232. Dwight W. Morrow also explained: ‘For three hundred years the world has been trying to get a rational understanding of State- sovereignty. If that phrase means that each State in its external relations has the right to do whatever it has the power to do, it is to be hoped that the defeat of Germany has marked the end of the doctrine.’ Morrow, The Society of Free States (New York: Harper, 1919), p. 184. In Britain, Horace Samuel Seal, who had discussed ‘perfect’ and ‘imperfect’ sovereignty before the war, now explained two meanings of the state according to the difference between German and Anglo- American traditions. Seal, The State: True and False with Further Consideration concerning Sovereignty (London: Watts, 1921), p. 3. 2Considering the drafting process, Zimmern observed that the tendency of French internationalism was a construction of the world community which he characterised as the tradition of Saint-Simon and Napoleon, and of Bodin and Rousseau. By contrast, Zimmern stressed that, no matter how much Wilson was a populist, he never entertained an idea of world government. For example, see Zimmern, The League of Nations, pp. 253–4. See plans for the establishment of a super-state composed by the French thinkers Lepert and Otlet, in John H. Latané, ed., Development of the League of Nations Idea: Docu- ments and Correspondence of Theodore Marburg, II (New York: Macmillan, 1932), pp. 767–8. 3 ‘We propose, then, that existing States, retaining their sovereignty, should enter into a treaty arrangement with a view to the preservation of peace.’ Viscount Bryce, Proposals for the Prevention of Future Wars (London: George Allen & Unwin, 1917), p. 13. At the Paris Peace Conference, Lord Cecil of the British delegation said: ‘only 180 Notes

when sovereignty is expressly limited, is it limited.’ David Hunter Miller, The Drafting of the Covenant (New York: G.P. Putnam’s Sons, 1928), I, p. 306. 4Zimmern, The League of Nations, p. 233. 5 T.J. Lawrence, Lectures on the League of Nations (Bristol: J.W. Arrowsmith, 1919), pp. 27–8. 6 ‘Notes by Professor L. Oppenheim on the Tentative Plan for the Organization of the League to Enforce Peace as Submitted by Mr. Theodore Marburg (Referred to in Oppenheim letter of Nov. 29, 1917)’, in Latané, ed., Development of the League of Nations Idea, pp. 804–5. 7 L. Oppenheim, The League of Nations and Its Problems (London: Longman, Green, 1919), pp. 75–6. 8 Ibid., p. 78. 9 L. Oppenheim, The Future of International Law (Oxford: Clarendon Press, 1921), p. 20. Geoffrey Butler also stated: ‘In so far as the League of Nations supplies a mechanism for the preservation of those rights and values [of humanity], the conception of sovereignty, with its necessary implication of moral authority, can for the first time be applied to external affairs’. Butler, ‘Sovereignty and the League of Nations’, The British Year Book of International Law 1920–21 (Lon- don: Henry Frowde and Hodder & Stoughton, 1920), p. 41. Gradualism also demanded manipulation at the first stage of the League. Henry N. Brailsford argued that because ‘Anglo-American’ sovereignty might not fully be understood by other states in the League, ‘we’ had to say in plain words in what particulars the court limits sovereignty. Brailsford, A League of Nations (London: Headley, 1917), pp. 309–10. 10 Lawrence, Lectures on The League of Nations, pp. 22–4. 11 ‘The League of Nations involves, in the words of Lord Curzon, “a restriction, almost a derogation, of the sovereignty of sovereign States”. . . . The argument . . . must be accepted subject to the understanding that sovereignty or independence in its very widest sense is not boundless liberty of a State to do what it likes without any restriction whatever.’ J.G.S. MacNeil, ‘Is a League of Nations Illu- sory?’, Fortnightly Review 620 (1 August 1918), p. 302. 12 W.T.S. Stallybrass, A Society of States or Sovereignty, Independence, and Equality in a League of Nations (London: George Routledge, 1918), p. 79. 13 Ibid., p. 16. 14 Ibid., pp. 24–7, 58–80, 114–21. The ‘legal, political, and diplomatic theories of the independence and sovereignty of States are illogical and the result of confused and timid thinking’. Leonard S. Woolf, International Government (Westminster: Fabian Society, 1916), p. 219. 15 Frederick Pollock, The League of Nations and the Coming Rule of Law (London: Oxford University Press, 1918), pp. 5–6. He maintained, however, the official line after the League was actually formed. See Pollock, The League of Nations (London: Stevens, 1920), pp. 80, 128. Notes 181

16 Ernest Barker, A Confederation of the Nations: Its Powers and Constitu- tion (Oxford: Clarendon Press, 1918), p. 18. 17 Ibid., pp. 29–30. 18 Ibid., pp. 30, 31, 36. 19 Latané, ed., Development of the League of Nations Idea, I, pp. 704–5. 20 Marburg, ‘Sovereignty and Race as Affected by a League of Nations’, in America’s Relation to the World Conﬂict and to the Coming Peace, The Annals 72 (1917), pp. 142–3. 21 Quoted in Marburg and Flack, eds., Taft Papers, p. 191. 22 Ibid., p. 279. 23 Simeon E. Baldwin, ‘The Vesting of Sovereignty in a League of Na- tions’, Yale Law Journal 28 ( January 1919), p. 212. 24 Ibid., pp. 213–17. See also Baldwin, ‘The Division of Sovereignty’, International Law Notes 3(26) (1918), pp. 57–9. 25 Baldwin, ‘The Vesting of Sovereignty’, p. 218. 26 Joseph C. Clayton, Pax Nobiscum: A Plan for a Tentative Constitution of the United Nations (New York: The American Lawyer, 1907). 27 Raleigh C. Minor, A Republic of Nations: A Study of the Organization of a Federal League of Nations (New York: Oxford University Press, 1918), pp. 28, xxiv, xxviii, 222, 240. 28 See, for instance, James Brown Scott, ‘Preface’, in James Madison, Notes, and Scott, The United States of America: A Study in International Organization (New York: Oxford University Press, 1920), p. x. See also H.G. Wells, In the Fourth Year: Anticipation of a World Peace (Lon- don: Chatto & Windus, 1918), pp. 4–6. 29 ‘Speech of Henry Cabot Lodge in the Senate of the United States, August 12, 1919’, in Henry C. Lodge, The Senate and the League of Nations (New York: Charles Scribner’s Sons, 1925), p. 407. 30 The League of Nations: Speech of Senator James A. Reed of Missouri in the Senate of the United States, September 22, 1919 (Washington, DC, 1919), p. 47. 31 Henry A. Wise Wood, Address Opposing the Ratiﬁcation of the Consti- tution of the League of Nations (New York: League for the Preservation of American Independence, 1919), p. 18. 32 Ibid., pp. 9–11. 33 David J. Hill, The People’s Government (New York: D. Appleton, 1915), pp. 41, 106–7, 116, 215, 220–2. 34 Hill, World Organization as Affected by the Nature of the Modern State (New York: Columbia University Press, 1911), pp. 23, 100. 35 Hill, Americanism: What It Is (New York: D. Appleton, 1918), pp. 19–20. 36 Thomas R. Powell criticised Hill by saying that he talked about something ideal rather than something actual; he confused law and morals. See Powell, ‘Review of Americanism: What It Is and The People’s Govern- ment’, Political Science Quarterly 31(4) (1916). 37 Hill, Present Problems in Foreign Policy (New York: D. Appleton, 1919), pp. x and xi. 182 Notes

38 Ibid., pp. 27, 32, 39 Woodrow Wilson, ‘Political Sovereignty’, in Wilson, An Old Master and Other Political Essays (New York: Charles Scribner’s Sons, 1893), pp. 73–4. 40 Ibid., p. 80. 41 Ibid., pp. 80, 82. 42 Ibid., p. 83. 43 Ibid., pp. 84–8. 44 Ibid., p. 90. 45 Woodrow Wilson, The State: Elements of Historical and Practical Poli- tics (Boston: D.C. Heath, 1889), pp. 625, 635. 46 Woodrow Wilson, Constitutional Government in the United States (New York: Columbia University Press, 1911), pp. 4, 9–10, 16, 20. 47 Ibid., pp. 54–6, 40. 48 His modern progressivism can be found in statements like this: ‘The place where the strongest will is present will be the seat of sovereignty. If the strongest will is present in Congress, then Congress will dominate the Government; if the strongest guiding will is in the Presidency, the President will dominate the Government.’ Address of Wilson in New York, 13 May 1912, quoted in Saul K. Padover, ed., Wilson’s ideals (Washington, DC: American Council on Public Affairs, 1942), p. 40. While he maintained traditional constitutionalism in the international field, his progressivism did not entail the pre-Civil War theory of divided sovereignty. For instance, considering the clause in the Covenant of the right to withdraw from the League, he connected: ‘The sovereignty of their country was the fetish of many republic men.’ He thought that the clause would have no practical effects, while its omission might have very serious results. Quoted in Florence Wilson, The Origins of the League Covenant: Documentary History of Its Drafting (London: Leonard & Virginia Woolf, 1928), p. 26. 49 Wilson’s address at the first annual national assemblage for the League to Enforce Peace in Washington, DC, 27 May 1916, quoted in Padover, ed., Wilson’s Ideals, p. 72. Wilson also expressed the traditional American view on international law: ‘the small states of the world have a right to enjoy the same respect for their sovereignty and for their territorial integrity that great and powerful nations expect and insist upon.’ See ‘Broader Aspects of the League Program’, in The League to Enforce Peace, Enforced Peace (New York: League to En- force Peace, 1916), pp. 159–64. 50 Wilson’s message to the Senate, 22 January 1917, quoted ibid., p. 131. 51 The fifth of ‘the Fourteen Points’ stipulates the principle ‘that, in determining all such questions of sovereignty, the interests of the populations concerned must have equal weight with the equitable claims of the government whose title is to be determined.’ Quoted ibid., p. 113. Notes 183

52 ‘We believe that the intolerable wrongs done in this war by the furious and brutal power of the Imperial German government ought to be repaired, but not at the expense of the sovereignty of any people.’ Wilson’s Reply to the Pope, 27 August 1917, quoted ibid., p. 89. Justifying the intervention in Mexico in defiance of the un- recognised government of General Huerta, Wilson said: ‘I wish to reiterate with the greatest earnestness the desire and intention of this Government to respect in every possible way the sovereignty and independence of the people of Mexico.’ Wilson’s comment in New York Times, 24 April 1914, quoted in Weber, Simulating Sover- eignty, p. 64. 53 Robert Lansing, ‘Notes on Sovereignty in a State: First Paper’ (1907), in Lansing, Notes on Sovereignty: From the Standpoint of the State and of the World (Washington, DC:Carnegie Endowment for International Peace, 1921), pp. 6–7. 54 Ibid., pp. 13–14. 55 Ibid., p. 3. 56 Lansing, ‘Notes on Sovereignty in a State: Second Paper’ (1907), ibid., p. 52. 57 Ibid., p. 53. 58 Lansing, ‘Notes on World Sovereignty’ (prepared 1906, first published 1921), ibid., p. 57. 59 Ibid., p. 61. 60 Lansing, The Peace Negotiations: A Personal Narrative (Boston: Houghton Mifflin, 1921), pp. 81–105, 149–61. 61 See Robert A. Klein, Sovereign Equality among States: The History of an Idea (Toronto: University of Toronto Press, 1974), pp. 71–2. 62 Lansing, The Peace Negotiations, pp. 58, 164. As early as May, 1916, Lansing opposed the use of force as a measure of the League of Nations and wrote in a letter to Wilson: ‘I do not believe that it is wise to limit our independence of action, a sovereign right, the will of other powers beyond this hemisphere.’ Ibid., p. 39. If sovereignty is the supreme physical power, coercive force on sovereignty is not only dangerous but also logically contradictory. 63 Ibid., pp. 113–21. 64 Ibid., pp. 107, 153. 65 Ibid., pp. 147–8, 93–105.

Chapter 5. The Collapse of International Constitutionalism

1The ofﬁcial line described the League of Nations to be a product of ‘the old conception of the absolute sovereignty of States and the newer and bolder conception towards which the world is moving – that States must accept some limitations of their sovereignty’. 184 Notes

League of Nations, The Aims, Methods and Activity of the League of Nations (Geneva: Secretariat of the League of Nations, 1935), pp. 23–4. 2 Léon Duguit, Law in the Modern State, trans. Frida and Harold Laski (London: George Allen & Unwin, 1921), pp. 1–32, 49. 3Johannes Mattern, Concepts of State, Sovereignty and International Law (Baltimore: Johns Hopkins University Press, 1928), pp. 121–34; see also Emerson, State and Sovereignty in Modern Germany, pp. 167–73. 4Hans Kelsen, Law and Peace in International Relations (Cambridge: Cam- bridge University Press, 1942), p. 78. 5 H. Krabbe, The Modern Idea of the State, trans. George H. Sabine and Walter J. Shepard (New York: D. Appleton, 1922), pp. 1–11. 6Carl Schmitt, Political Theology: Four Chapters on the Concepts of Sov- ereignty, trans. George Schwab (Cambridge, MA: MIT Press, 1988), pp. 5–15. 7 Ibid., p. 34. 8 It is true that the Fascists stressed the typical Continental theory of the organic state. According to Alfred Rocco, a leading Italian Fas- cist theorist, ‘Fascism discovers sovereignty to be inherent in society when it is juridically organized as a state.’ Alfred Rocco. ‘The Politi- cal Doctrine of Fascism’ (1925), in Margaret Spahr, ed., Readings in Recent Political Philosophy (New York: Macmillan, 1935), p. 687. An inﬂuential German jurist, Ernst Huber, asserted that the Führer’s will was ‘the collective national will. . . . The Führer unites in himself all the sovereign authority of the Reich.’ Quoted in Richard H. Cox, The State in International Relations (San Francisco: Chandler, 1965), p. 58. Nevertheless, it is also true that the antagonism against liberal democracy generally led Fascists to deny the constitutional roles of the people as well as limited government. Like Schmitt’s theory, Fascism was a doctrine of the inversion of normality in Anglo-American constitutionalism. 9 See Harold J. Laski, Studies in the Problem of Sovereignty (New Haven: Yale University Press, 1917), pp. 1–25. 10 Mattern, Concepts of State, Sovereignty and International Law, pp. 101– 20. Similar arguments are found, among others, in F.W. Coker, ‘Pluralistic Theories and the Attack upon State Sovereignty’, in A History of Political Theories Recent Times, ed. Charles E. Merriam and Harry E. Barnes (New York: Macmillan, 1924), pp. 80–119; P.W. Ward, Sovereignty: A Study of a Contemporary Political Notion (London: George Routledge, 1928), pp. 105, 175. 11 Laski, Authority in the Modern State, pp. 26, 65, 119. Laski argued elsewhere that the political philosopher would be driven to ‘the perception that, politically, there is no such thing as sovereignty at all’. Instead, ‘the starting-point of enquiry is the relation between the government of a state and its subjects.’ Laski, ‘The Theory of Popular Sovereignty’, Michigan Law Review 17(3) (1919), p. 214. See Notes 185

also Laski, ‘Law and the State’, Economia: A Journal of the Social Sciences 27 (1929), pp. 267–95. 12 Laski insisted that state sovereignty should be abolished for the interests of humanity, but still admitted that the state was an inevitable organisation. See Laski, A Grammar of Politics (London: George Allen & Unwin, 1926), pp. 44–88. 13 Laski, The State in Theory and Practice (London: George Allen & Unwin, 1945; first published 1935), p. 209. 14 Laski, ‘Introduction’, in A Grammar of Politics, 4th edn (1938), pp. iii–xxi. 15 B.M. Laing observed that the traditional notion of sovereignty de- pended on the constitutional distinction between state and individual or class of individuals, between state and society, which was diffi- cult to understand in the context of the theory of popular sovereignty. B.M. Laing, ‘Aspects of the Problems of Sovereignty’, International Journal of Ethics 32(1) (1921), pp. 5, 16. See also C.A. Hereshoff Bartlett, ‘The Sovereignty of the People’, Law Quarterly Review 37(148) (1921), p. 508. 16 Kung Chuan Hsiao emphasised that, as the pluralists were finally compelled to restore sovereignty, ‘the real problem of the pluralists is not to destroy sovereignty, but to reorganize it, so that political power shall become the true expression of the community’. Hsiao, Political Pluralism: A Study in Contemporary Political Theory (London: Kegan Paul, Trench, Trubner, 1927), p. 140. 17 A.D. Lindsay, ‘Sovereignty’, Proceedings of the Aristotelian Society 24 (1924), pp. 235–54. See also Lewis Rockow, ‘The Doctrine of the Sovereignty of the Constitution’, American Political Science Review 25(3) (1931). This view was accepted by many scholars in the interwar period. For instance, C.F. Strong stressed that ultimately ‘The legal sovereign in a federation is the constitution itself’. C.F. Strong, Modern Political Constitutions An Introduction to the Comparative Study of their History and Existing Form (London: Sidgwick & Jackson, 1963; first published 1930), p. 83. 18 Lindsay, The Modern Democratic State, I (London: Oxford University Press, 1947; first published 1943), pp. 224, 226. Lindsay also stated that his theory of the sovereignty of the constitution gave an intel- ligible account of international relations. See ibid., pp. 229. 19 R.M. MacIver, The Modern State (London: Oxford University Press, 1926), pp. 15–16, 468, 479. He was at the University of Toronto. 20 William S. Holdsworth, Some Lessons from Our Legal History (New York: Macmillan, 1928), pp. 123, 126, 130–1, 137–40. William K. Wallace found the establishment of modern state sovereignty in the evolution of English constitutional government. See Wallace, The Passing of Politics (London: George Allen & Unwin, 1924), pp. 59–61. 21 See L. Bartlett, Questions and Answers on Jurisprudence (London: Sweet & Maxwell, 1934), p. 23. 186 Notes

22 Philip Kerr and Lionel Curtis, The Prevention of War (New Haven: Yale University Press, 1923), pp. 67, 50. 23 Ibid. Although he favourably mentioned the history of the United States in the lecture in America, he also stressed that the British Commonwealth showed that the idea of world unity was not so far- fetched. Ibid., p. 71. As regards the relationship of Kerr with the American Federalists, the British Empire and ‘the British federalist tradition’, see Andrea Bosco, ‘Lord Lothian and the Federalist Cri- tique of National Sovereignty’, in David Long and Peter Wilson, eds, Thinkers of the Twenty Years’ Crisis: Inter-War Idealism Reassessed (Ox- ford: Clarendon Press, 1995), pp. 247–53. 24 Robert Jones and S.S. Sherman, The League of Nations from Idea to Reality (London: Sir Isaac Pitman & Sons, 1927), pp. 66–7, 70, 72. 25 C. Howard-Ellis, The Origin, Structure and Working of the League of Nations (London: George Allen & Unwin, 1928), p. 120. 26 Hugh Dalton, Towards the Peace of Nations: A Study in International Politics (London: George Routledge & Sons, 1928), p. 284. 27 H.R.G. Greaves, The League Committees and World Order (London: Oxford University Press, 1931), p. 244. 28 L.P. Mair, The Protection of Minorities: The Working and Scope of the Minorities Treaties under the League of Nations (London: Christophers, 1928), p. 22. 29 See James C. Hales, ‘Some Legal Aspects of the Mandate System: Sovereignty – Nationality – Termination and Transfer’, Transactions of the Grotius Society 23 (1938), p. 94. M.E. Lindley adopts the theory of limited sovereignty by attributing sovereignty to the mandatory powers. According to him, sovereignty is limited by the conditions laid down in the respective mandates. It is not an anomaly, as general international law imposes a limitation upon sovereignty. Lindley, The Acquisition and Government of Backward Territory in International Law (London: Longmans, Green, 1926), pp. 266–7. 30 See Arthur B. Keith, The Sovereignty of the British Dominions (London: Macmillan, 1929), pp. 1–2. 31 Philip J.N. Baker, The Present Juridical Status of the British Dominions in International Law (London: Longmans, 1929), pp. 190–1, 371. H. Goitein saw the similarity between the British Empire and the League of Nations. Goitein, ‘Some Problems of Sovereignty’, Trans- actions of the Grotian Society 13 (1928), p. 93. 32 F.A. Váli, Servitudes of International Law (London: P.S. King & Son, 1933), pp. 8–9. John F. Williams also mentioned ‘spheres of sovereignty’ in Williams, Chapters on Current International Law and the League of Nations (London: Longmans, Green, 1929), pp. 10–11. 33 See R.G. Hawtrey, Economic Aspects of Sovereignty (London: Longmans, Green, 1930). 34 The Marquis of Lothian (Philip H. Kerr), Paciﬁsm Is Not Enough Nor Patriotism Either (Oxford: Clarendon Press, 1935), pp. 12–13, 26–7. Notes 187

F.N. Keen believed that ‘The theory of the sovereignty of national states has been a fertile source of misconception.’ Keen, A Better League of Nations (London: George Allen & Unwin, 1934), p. 20. Arnold J. Toynbee recognised that ‘the devotion of each state member to its own local sovereignty’ was one of the principal obstacles to success in making the Covenant work. Arnold J. Toynbee, ‘The Nature and Paramount Aim of the League of Nations’, in Royal In- stitute of International Affairs, The Future of the League of Nations (New York: Oxford University Press, 1936), pp. 12–13. 35 John F. Williams, Some Aspects of the Covenant of the League of Nations (London: Oxford University Press, 1934), pp. 48–9. 36 John F. Williams, Aspects of Modern International Law (London: Ox- ford University Press, 1939), p. 26. Edward Mousley believed that because sovereignty and law were interdependent, in the external arena to the state, no reign of law existed, and there was no sovereign power operative. Mousley, Man or Leviathan? A Twentieth Century Enquiry into War and Peace (London: George Allen & Unwin, 1939), pp. 251–3, 260. 37 See George W. Keeton, ‘National Sovereignty and the Growth of In- ternational Law’, Juridical Review 50(4) (1938), p. 394. 38 Edward Jenks, The New Jurisprudence (London:John Murray, 1933), p. 82. 39 In The Times, July 1938, there appeared correspondence which discussed the necessity of a super-state. Lord Lothian wrote that the only way of ending world war was ‘to pool enough of their sovereignty to create a common representative Government’. The Archbishop of York replied: ‘the root evil is unlimited national sovereignty’. But W.R. Bisschop said: ‘An international police force could only exist if emanated from a sovereign power over and above the nations which could enforce its sovereign will. . . . The rule of law without a sovereign power to enforce it is devoid of all substance.’ Quoted in George W. Keeton, National Sovereignty and International Order (Sevenoaks: Peace Book Company, 1939), pp. 156, 153, 160. 40 F.N. Keen, Crossing the Rubicon or the Passage from the Rule of Force to the Rule of Law among Nations (Birmingham: Cornish Brothers, 1939), p. 17. 41 David Davies, The Problem of the Twentieth Century: A Study in Inter- national Relationships (London: Hazel & Viney, 1930), p. 201. Arnold W. Foster also expected further curtailment of the ‘sovereign rights’ of League members after the war, and hoped for ‘Progress towards the goal of world order through world government’. Foster, ‘National Sovereignty and the Covenant’, Headway: The Journal of the League of Nations Union 2(2) (1939), p. 5. 42 Wolfgang Gaston Friedmann, What’s Wrong with International Law? (London: Watts, 1941), p. 13. 43 See Geroge W. Keeton and Georg Schwarzenberger, Making International Law Work (London: Peace Book Company, 1939), p. 72. 188 Notes

44 E.H. Carr, The Twenty Years’ Crisis 1919–1939 (London: Macmillan, 1991; ﬁrst published 1939), p. 51. 45 For instance, Carr stated: ‘For the past hundred years, and more especially since 1918, the English-speaking people have formed the dominant group in the world; and current theories of international morality have been designed to perpetuate their supremacy and expressed in the idiom peculiar to them.’ Ibid., pp. 79–80. 46 Ibid., pp. 27, 51. 47 Ibid., pp. 230–1. 48 ‘The boundaries of sovereignty, therefore, are the boundaries of morality.’ Stephen C. Pepper, ‘The Boundaries of Society’, International Journal of Ethics 32(4) (1922), pp. 440–1. 49 Marshall E. Dimock, Modern Politics and Administration: A Study of the Creative State (New York: American Book Company, 1937), p. 24. 50 Edgar Bodenheimer, Jurisprudence (New York: McGraw-Hill, 1940), p. 70. F.W. Coker warned that if pluralism risked discarding the concept of sovereignty, it would fall into anarchism and syndicalism. Coker, ‘Pluralistic Theories’, pp. 80–119. 51 S.A. Korff, ‘The Problem of Sovereignty’, American Political Science Review 17(3) (1923), p. 412. He was at Georgetown University. 52 William E. Hocking, Man and the State (New Haven: Yale University Press, 1926), pp. 389–403. 53 Elliot, ‘Sovereign State or Sovereign Group?’, American Political Science Review 19(3) (1925), pp. 494–8. 54 Charles Howard McIlwain, ‘Sovereignty Again’, Economica 18 (1926), pp. 256–67. 55 John Dickinson, ‘A Working Theory of Sovereignty I’, Political Science Quarterly 42(4) (1927), p. 548. 56 John Dickinson, ‘A Working Theory of Sovereignty II’, Political Science Quarterly 43(1) (1928), pp. 37–47, 51–5. According to George E.G. Catlin, sovereignty means ‘only ﬁnal authority to arbitrate’. Catlin, A Study of the Principles of Politics (London: George Allen & Unwin, 1930), p. 434. 57 Max Radin, ‘The Intermittent Sovereign’, Yale Law Journal 39(4) (1930), pp. 522, 530. 58 Francis G. Wilson, ‘A Relativistic View of Sovereignty’, Political Science Quarterly 49(3) (1934), pp. 388–400. 59 Walter Sandelius, ‘National Sovereignty versus the Rule of Law’, American Political Science Review 25(1) (1931). 60 Heinz H. Eulau, ‘The Depersonalization of the Concept of Sover- eignty’, Journal of Politics 4(1) (1942), pp. 3–16. 61 Ibid., p. 18. 62 See Roland R. Foulke, A Treatise on International Law, I (Philadel- phia: John C. Winston, 1920), p. 69. 63 E.M. Borchard, ‘Political Theory and International Law’, in Charles E. Merriam and Harry E. Barnes, eds, A History of Political Theories: Notes 189

Recent Times (New York: Macmillan, 1924), pp. 122, 139. A similar insistence is found in Oscar Newfang, The Road to World Peace: A Federation of Nations (New York: G.P. Putnam’s Sons, 1924), pp. 35–44. 64 Charles G. Fenwick, International Law, 2nd edn (New York: Appleton- Century, 1934; first published 1924), p. 89. James Brown Scott argued: ‘law does not mean restriction upon sovereignty, but restriction upon the agents of sovereignty.’ Scott, Sovereign States and Suits before Arbitral Tribunals and Courts of Justice (New York: New York University Press, 1925), p. 8. 65 John E. Harley, The League of Nations and the New International Law (New York: Oxford University Press, 1921), pp. 41, 56–9. It was still possible to say, however, that the Covenant was a treaty; and every treaty contained a limitation of sovereignty. See Lindsay Rogers, ‘The League of Nations and the National State,’ in Stephen P. Duggan, ed., The League of Nations: The Principle and the Practice (Boston: At- lantic Monthly Press, 1919), pp. 88–93. 66 Edward A. Harriman, The Constitution at the Cross Roads: A Study of Legal Aspects of the League of Nations, the Permanent Organization of Labor and the Permanent Court of International Justice (New York: George H. Doran, 1925), p. 23. 67 Quincy Wright, ‘Sovereignty of the Mandates’, American Journal of International Law 17 (1923), p. 691. 68 Quincy Wright, Mandates under the League of Nations (Chicago: Uni- versity of Chicago Press, 1930), pp. 265, 268, 294. Leonidas Pitamic also described sovereignty as ‘something relative’. Pitamic, A Trea- tise on the State (Baltimore: J.H. Furst, 1933), p. 25. Wright’s definition of sovereignty was ‘the status of an entity subject to international law and superior to municipal law’. See Quincy Wright, ‘National Sovereignty and Collective Security’, in Ernest M. Patterson, ed., The Annals of the American Academy of Political Science, vol. 186, July 1936: The Attainment and Maintenance of World Peace (Philadelphia: Ameri- can Academy of Political and Social Science, 1936), pp. 94–103. 69 Aaron M. Margalith, International Mandates (Baltimore: Johns Hopkins Press, 1930), pp. 145–70, 179. As regards the chaotic confusion of the Anglo-American theory of sovereignty in the mandatory system caused by the Japanese withdrawal from the League of Nations, see Paul H. Clyde, Japan’s Pacific Mandate (New York: Macmillan, 1935), pp. 178–201. 70 Clyde Eagleton, The Responsibility of States in International Law (New York: New York University Press, 1928), pp. 41–2, 206, 16. 71 James Wilford Garner, ‘Limitations on National Sovereignty in In- ternational Relations’, American Political Science Review 19(1) (1925), pp. 20, 24. 72 Charles Pergler, Judicial Interpretation of International Law in the United States (New York: Macmillan, 1928), pp. 34–40. 190 Notes

73 Edmund C. Mower, International Government (Boston: D.C. Heath, 1931), pp. 109–16. 74 Felix Morley, The Society of Nations: Its Organization and Constitu- tional Development (Washington, DC: Brookings Institution, 1932), p. 628. 75 Joseph Tanney, Sovereignty (Washington, DC: Hayworth Printing Co., 1933), pp. 131–59. 76 Frederick Schuman, International Politics: An Introduction to the West- ern State System (New York: McGraw-Hill, 1933), pp. 49, 53. 77 Frederick A. Middlebush and Chesney Hill, Elements of International Relations (New York: McGraw-Hill Book Company, 1940), p. 43.

Chapter 6. The Formalisation of Sovereignty

1 See, for instance, Emery Reves, The Anatomy of Peace (Harmondsworth: Penguin, 1947), pp. 115–29. 2 Leonard S. Woolf, The Future of International Government (London: Labour Party, 1940), pp. 4–12. By advocating ‘functionalism’, David Mitrany emphasised that sovereignty would be preserved after international integration, although its content and working ‘could be modified’. Mitrany, A Working Peace System: An Argument for the Func- tional Development of International Organization (London: Royal Institute of International Affairs, 1943), p. 29. Allan G.B. Fisher’s suggestion was also to construct international institutions but not to impair ‘the formal apparatus of sovereign power’. Fisher, ‘International In- stitutions in a World of Sovereign States’, Political Science Quarterly 59(1) (1944), p. 14. 3William Beveridge, The Price of Peace (London: Pilot Press, 1945), pp. 50–3. But Alfred Cobban rejected national self-determination as a foundation of sovereignty, as sovereignty was concerned with the preservation of law and order and the social fabric, not with nationality. Cobban, The Nation State and National Self-Determination (London: Collins Clear-Type Press, 1969; originally published in 1945), pp. 130–42. 4 Robert Federn, Peace, Prosperity, International Order (London: William & Norgate, 1945), p. 117. 5 Referring to the history of the United States, Bevin said: ‘no one ever surrenders sovereignty: they merge it into a greater sovereignty.’ His ideas of world law and a world assembly as well as his plan for the ‘United States of Europe’ in the interwar period were supposed to be set up with ‘a limited objective – the objective of peace’. Par- liamentary Debates, fifth series, vol. 416: House of Commons Official Reports (London: HSO, 1946), pp. 612, 781–7. As regards the Soviet view that Bevin’s idea of a world government was a capitalist con- spiracy, see George W. Keeton and Georg Schwarzenberger, Making International Law Work, 2nd edn (London: London Institute of World Notes 191

Affairs, 1946), pp. 172–5, and Elliot R. Goodman, The Soviet Design for a World State (New York: Columbia University Press, 1960), p. 396. 6 Jackson H. Ralston, A Quest for International Order (Washington, DC: John Byrne, 1941), p. 55. 7Carnegie Endowment for International Peace, The International Law of the Future: Postulates, Principles and Proposals (Washington, DC: Carnegie Endowment for International Peace, 1944), pp. 29–31. 8Ben M. Cherrington, ‘Must Sovereignty Be Limited’ and R.E. Pattison Kline, ‘Must Sovereignty Be Limited?’, in Julia E. Johnsen, ed., World Peace Plan (New York: H.W. Wilson, 1944), pp. 204, 207–8. Kenneth E. Appel, a psychiatrist, suggested that isolationism was an unhealthy sign. The vocabulary associated with sovereignty was of the delu- sions of grandeur of the manic patient or the paretic. Then he made a diagnosis: ‘The peace which follows this war will be psychologi- cally unsound and provocative of another war, unless a new concept of shared – cooperative – contributing sovereignty forms the basis of our thinking and dealings with other nations.’ Appel, ‘Nationalism and Sovereignty: A Psychiatric View’, Journal of Abnormal and Social Psychology 40(4) (1945), pp. 357, 359, 361. 9 Cleveland Policy Committee, Sovereignty and World Peace (Cleveland, OH: Cleveland Policy Committee, 1943), pp. 17–23. 10 Wendell L. Willkie, ‘Our Sovereignty: Shall We Use It?’, Foreign Af- fairs 22(3) (1944), pp. 347, 360. Like President Roosevelt, some publicists were drawn to regionalism, although their plans were evi- dently ‘American’. For instance, Haridas T. Muzumdar foresaw ﬁve regional sovereignties in the united nations of the world, which is ‘a logical culmination’ of the USA. Muzumdar, The United Nations of the World (New York: Universal Publishing Company, 1942), pp. 26, 44, 129. For a similar feature, see also Ely Culbertson, Total War: What Makes Wars and How to Organize Peace (New York: Doubleday, Doran, 1943), pp. 242–57. 11 Edward S. Corwin, The Constitution and World Organization (Princeton: Princeton University Press, 1944), pp. 1–6. 12 Charles E. Merriam, ‘Sovereignty’, in Lyman Bryson, Louis Finkelstein and Robert M. MacIver, eds., Approaches to World Peace (New York: Conference on Science, Philosophy and Religion in Their Relation to the Democratic Way of Life, 1944), pp. 24–5. 13 Pitirim A. Sorokin, ‘Cause of War and Conditions of a Lasting Peace’, in Bryson et al., eds, Approaches to World Peace, p. 105. The same view was expressed in Amos J. Peaslee, United Nations Government (New York: Justice House, 1945), p. 60. 14 Frank G. Tyrrell, ‘Sovereignty Not Impaired by World Federation’, in International Police Force, compiled by Julia E. Johnson (New York: H.W. Wilson, 1944), p. 43. 15 Margaret Spahr, ‘Sovereignty under Law: A Possible Redeﬁnition of 192 Notes

Sovereignty in the Light of Locke’s Theory of Liberty’, American Pol- itical Science Review 39(2) (1945), pp. 350, 354. 16 In the military ﬁeld, General Omar N. Bradley, Chairman of the US Joint Chiefs of Staff, said in 1950: ‘With such an agreement [NATO], of course, a small bit of sovereignty is relinquished.’ British Field Marshal Bernard L. Montgomery also said in India in 1949: ‘It is quite illogical for nations to agree on a common cause and then not to pool their sovereignty in order to pursue that cause.’ Quoted in Norman D. Palmer and Howard C. Perkins, International Relations: The World Community in Transition (London: Stevens & Sons, 1954), p. 65. 17 ‘[S]overeignty in the Charter must obviously mean sovereignty subject to the provisions of the Charter. This implies that the Member States are free and sovereign within the limitations imposed upon them by the Charter.’ Leland M. Goodrich and Edvard Hambro, Charter of the United Nations: Commentary and Documents (Boston: World Peace Foundation, 1946), pp. 64–6. 18 Louis B. Sohn, ed., Basic Documents of the United Nations, 2nd edn (Brooklyn, NY: Foundation Press, 1968), pp. 27–9. See also ‘Essen- tials of Peace’, the UN General Assembly Resolution 290 (IV) of 1949, ibid., pp. 29–30. 19 Hans J. Morgenthau, ‘The Problem of Sovereignty Reconsidered’, Col- umbia Law Review 48(3) (1948), p. 343. 20 Ibid. 21 Ibid., pp. 344–5. 22 Ibid., pp. 345–7. 23 Ibid., p. 348. 24 It is noteworthy that Morgenthau regarded seventeenth- and eighteenth-century aristocratic diplomacy as ‘international’ or ‘supranational’ in contrast to ‘nationalistic’ politics in the modern age. It follows from this that ‘the content and objectives of today’s ethics of nationalistic universalism’ is similar, not to the Westphalian system, but to ‘those of primitive tribes or of the Thirty Years’ War’. See Hans Morgenthau, Politics among Nations: The Struggle for Power and Peace, 6th edn, rev. Kenneth W. Thompson (New York: McGraw- Hill, 1985; ﬁrst published 1948), pp. 260–74. Compare it with publicists like G.F. Hinman, who maintained that the ‘sovereignty of politicians must be vanquished.’ Hinman, War Is Preventable, new rev. edn (Seattle: American Printing Co., 1945), pp. 130–6. It is noteworthy that, for publicists like Peter W. Berger, the Peace of Westphalia was a symbol of international peace that embodied (relative) sovereignty, international law and the balance of power. See Berger, ‘National Sovereignty and World Unity’, Thought: Fordham University Quarterly 20(79) (1945). 25 Morgenthau, ‘The Problem’, p. 353. 26 Ibid., p. 361. Notes 193

27 Ibid., pp. 362–3. 28 Ibid., pp. 363–5. 29 For instance, a congress held in 1948 with Winston Churchill as honorary president declared: ‘for the people of Europe the hour has come to hand over and merge a part of their sovereign rights.’ Quoted in Forest L. Grieves, Supranationalism and International Adjudication (Chicago: University of Chicago Press, 1969), p. 154. 30 Discussions about the lost sovereignty of parliament in the Com- monwealth include Edward McWhinney, ‘“Sovereignty” in the United Kingdom and the Commonwealth Countries at the Present Day’, Political Science Quarterly 66(4) (1953), and Geoffrey Marshall, ‘What Is Parliament? The Changing Concept of Parliamentary Sovereignty’, Political Studies 2(3) (1954). 31 W.J. Ress, ‘The Theory of Sovereignty Restated’, Mind: A Quarterly Review of Psychology and Philosophy 59(236) (1950). 32 S.I. Benn, ‘The Use of “Sovereignty”’, Political Studies 3(2) (1955), p. 122. 33 For instance, see Berlin, ‘Two Concepts of Liberty’, pp. 162–6, and F.A. Hayek, The Constitution of Liberty (Chicago: University of Chi- cago Press, 1960), p. 106. 34 Hersch Lauterpacht, International Law and Human Rights (London: Stevens & Sons, 1950), pp. 68, 305–10. 35 Hersch Lauterpacht, ‘Sovereignty and Federation in International Law’, presumably written in 1940, in International Law: Being the Collected Papers of Hersch Lauterpacht, ed. Eli Lauterpacht, III (Cambridge: Cambridge University Press, 1977), p. 25. See also Lauterpacht, ‘State Sovereignty and Human Rights’, a lecture delivered in 1950, ibid. 36 See Lauterpacht, ‘The Grotian Tradition’. 37 Lauterpacht, International Law and Human Rights, pp. 310, 460, 461. Lauterpacht expected a ‘European Court of Human Rights’ to be a regional bridge to a world constitution. See ibid., pp. 453–6. 38 Wifred C. Jenks, The Common Law of Mankind (London: Stevens & Sons, 1958), pp. 123–9. 39 See Wilfred C. Jenks, Law in the World Community (London: Longmans, Green, 1967), pp. 6, 23, 31–40; Arthur Larson, Wilfred C. Jenks et al., Sovereignty within the Law (Dobbs Ferry, NY: Oceana Publication, 1965), chs 1, 2, 3, 24, 25; Jenks, A New World of Law? A Study of the Creative Imagination in International Law (London: Longmans, Green, 1969), pp. 131–7, 295. 40 Georg Schwarzenberger, ‘Sovereignty: Ideology and Reality’, The Year- book of World Affairs 1950 (London: London Institute of World Affairs, 1950), pp. 1–22. 41 Schwarzenberger attempted to explain ‘power politics’ in the contemporary world by classifying states by using such categories as positive-negative, political-legal, and absolute-relative sovereignty. See Schwarzenberger, ‘The Forms of Sovereignty’, Current Legal Problems 194 Notes

10 (1957), pp. 264–95. See also Schwarzenberger, International Law and Order (London: Stevens & Sons, 1971), pp. 57–83. 42 Schwarzenberger, ‘Sovereignty’, p. 20. 43 John W. Burton, International Relations: A General Theory (Cambridge: Cambridge University Press, 1965), pp. 67–71, 116–8. 44 Ian Brownlie, Principles of Public International Law (Oxford: Clarendon Press, 1966), p. 280. 45 Hinsley, Sovereignty, p. 125. 46 Ibid., pp. 1–26. 47 F.H. Hinsley, ‘The Concept of Sovereignty and the Relations between States’, Journal of International Affairs 21(2) (1967), pp. 242–52. 48 It may be noted in this context that all the major countries, above all European countries including the UK, had adopted welfare poli- cies since the Second World War. According to J.D.B. Miller, the combination of people’s ancient need for order and their modern search for welfare helps to explain ‘why the sovereign state, instead of becoming outmoded (as many hopeful people have suggested at various times in this century), has become the model and aim of every community which is denied its beneﬁts’. Miller, The Nature of Politics (London: Gerald Duckworth, 1962), p. 139. Fancis Rosenstiel, who might be said to represent a kind of idealised French position in the period of Charles de Gaulle, in 1963 dismissed the idea of ‘supranationality’ of the European community as it was still the Europe of the Communities made up of concurrent sovereignties. Rosenstiel, ‘Reﬂections on the Notion of “Supranationality”’, Journal of Common Market Studies 2(2) (1963), pp. 128–30. 49 W.J. Stankiewicz, ‘In Defense of Sovereignty: A Critique and an In- terpretation’, in Stankiewicz, ed., In Defense of Sovereignty (New York: Oxford University Press, 1969), p. 38. 50 Jacques Maritain, ‘The Concept of Sovereignty’, American Political Science Review 44(2) (1950), pp. 343–57. He was at Princeton University. 51 Harold D. Lasswell and Abraham Kaplan, Power and Society: A Frame- work for Political Inquiry (New Haven: Yale University Press, 1950), pp. 177–85. 52 Quincy Wright, Constitutionalism and World Politics (University of Illinois Bulletin, Institute of Government and Public Affairs, 1951), pp. 7–8, 19–20. 53 Quincy Wright, Problems of Stability and Progress in International Re- lations (Berkeley: University of California Press, 1954), pp. 206–7. 54 Quincy Wright, ‘Sovereignty and International Cooperation’ in J.S. Bains, ed., Studies in Political Science (London: Asia Publishing House, 1961), pp. 14–37. As examples of the argument of the compatibility of sovereignty and international cooperation, see Karl Loewenstein, ‘Sovereignty and International Co-operation’, American Journal of International Law 48(2) (1954), and Wolfgang Gaston Friedmann, ‘National Sovereignty, International Cooperation, and the Reality of Notes 195

International Law’, in Richard Falk and Saul H. Mendlovitz, eds, The Strategy of World Order, III: The United Nations (New York: World Law Fund, 1966), pp. 508–22. Friedmann observed: ‘there is no clear-cut alternative between national and international sovereignty, but a complex, evolving and checkered relationship.’ Friedmann, Chang- ing Structure of International Law (New York: Columbia University Press, 1966), pp. 113–14. 55 Charles P. Schleicher, Introduction to International Relations (New York: Prentice-Hall, 1954), pp. 173–83. Norman Coussins insisted that there were two kinds of sovereignty: absolute and relative. The conditions of a new world enabled the former to perish and the latter to pre- vail. Coussins, In Place of Folly (New York: Harper & Brothers, 1961), pp. 105–9. Examples of discussions on limited sovereignty in the 1950s include Norman Bentwich and Andrew Martin, A Commentary on the Charter of the United Nations (New York: Kraus Reprint Co., 1951), pp. 10–12, and P.E. Corbett, Law and Society in the Relations of States (New York: Harcourt, Brace, 1951), p. 265. 56 This provision is certainly an application of the Tenth Amendment of the US Constitution to the UN Charter. Grenville Clark and Louis B. Sohn, World Peace through World Law, 3rd edn (Cambridge, MA: Harvard University Press, 1966; ﬁrst published 1958), p. 9. See also the conference proceedings, World Peace through Law: The Athens World Conference (St Paul, M.N: West, 1964). In opposition to the movement of ‘world peace through world law’, a left-wing organisation, the International Association of Democratic Lawyers, insisted: ‘The principle of sovereignty is by no means out-moded, since the number of sovereign States continues to grow.’ According to them, the advocates of ‘world peace through world law’ in the American Bar Association ‘are thinking in terms of an international law ’. The International Association of Democratic Lawyers, Law in the Service of Peace (Brussels: International Association of Democratic Lawyers, 1963), pp. 7, 15. 57 Arthur Larson, When Nations Disagree: A Handbook on Peace through Law (Baton Rouge: Louisiana State University Press, 1961), pp. 28–35. 58 Larson, Jenks et al., Sovereignty within the Law. 59 Clarence K. Streit, Freedom’s Frontier: Atlantic Union Now (New York: Harper, 1961), pp. 91–129. The contrast between (American) sovereignty of the individual and absolute national sovereignty (of communism) is also seen in Whitney H. Slocomb, The Sovereign Indi- vidual vs. Communism and Fascism (Los Angels: Whitney H. Slocomb, 1951), p. 3, and Arthur Freud, Of Human Sovereignty (New York: Philosophical Library, 1964), chs 1, 10, 11, 16. 60 According to Carl Joachim Friedrich, ‘What is meant by the “state” in both the Gaullist and neoliberal reaction is a strong government rather than a state in the classical sense. . . . Hence even though we observe in contemporary politics a certain reemergence of “sovereignty” 196 Notes

in the classic meaning of the term, few are willing to claim that a state depends upon it and is well governed only if it possesses such a sovereign.’ Friedrich, Man and His Government: An Empirical Theory of Politics (New York: McGraw-Hill, 1963), pp. 553–4. 61 E. Raymond Platig, ‘International Relations as a Field of Inquiry’, in James N. Rosenau, International Politics and Foreign Policy: A Reader in Research and Theory (New York: Free Press, 1969), p. 15. 62 Morton A. Kaplan and Nicholas de B. Katzenbach, The Political Foun- dations of International Law (New York: John Wiley & Sons, Inc., 1961), pp. 136–40.

Chapter 7. Sovereign Equality and National Sovereignty in Communist and Third World Countries

1In his much cited book, Edwin E. Dickinson proved that neither Grotius nor the Westphalian system knew natural equality of states. According to Dickinson, Grotius ‘held that important limitations upon the exercise of political power were consistent with the enjoyment of international personality and even of perfect sovereignty’. Dickinson, The Equality of States in International Law (Cambridge, MA: Harvard University Press, 1920), p. 58. 2 Quoted in Robert A. Klein, Sovereign Equality among States: The His- tory of an Idea (Toronto: University of Toronto Press, 1974), p. 57. 3For instance, in the spring of 1919 the Mexican Foreign Ofﬁce sounded off on Article 21 of the Covenant guaranteeing the Monroe Doc- trine, declaring ‘that Mexico had not recognized and would not recognize the Monroe Doctrine... since it attacks the sovereignty and independence of Mexico’. Quoted in Dexter Perkins, A History of Monroe Doctrine (Boston: Little, Brown, 1963), p. 326. 4 Ibid., pp. 352–3, 355–6. 5Cárlos Saavedra Lamas, the Argentine delegate at the Inter-American Conference for the Maintenance of Peace in 1936, praised the non- intervention protocol for reiterating ‘the application of the principle of the sovereign equality of all the States on this Continent’. Sumner Wells of the US delegation at the Conference used a variation of the term in two addresses in 1942. In the same year he became active in the State Department’s postwar policy planning preparations and was involved in the drafting of the Moscow Declaration. See Klein, Sovereign Equality, pp. 104, 108, 111–12. 6 Ibid., p. 113, and Denna Frank Fleming, The United States and the World Court (New York: Doubleday, Doran, 1945), pp. 174–5. When the UN Charter was ratiﬁed in the US Senate, Senator Raymond E. Willis declared: ‘We have protected the sovereignty of the United States of America.’ Quoted in Cox, The State in International Rela- tions, p. 71. Notes 197

7Hans Kelsen explains that ‘sovereign equality’ is correct only if equality does not mean equality of duties and rights, but rather equality of capacity for duties and rights. Kelsen, Peace through Law (Chapel Hill: University of North Carolina Press, 1944), pp. 36–7. See also Leland M. Goodrich and Edvard Hambro, Charter of the United Nations: Com- mentary and Documents, 2nd rev. edn (London: Stevens & Sons, 1949), p. 100. An UNCIO (United Nations Committee on International Organization) Committee interprets ‘sovereign equality’ as including the following elements; (1) that states are juridically equal; (2) that each state enjoys the rights inherent in full sovereignty; (3) that the personality of the state is respected, as well as its territorial integrity and political independence; (4) that the state should, under international order, comply faithfully with its international duties and obligations. Quoted ibid., p. 99. The Declaration of Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations adopted by the United Nations General Assembly in 1970 added another provision: ‘Each State has the right freely to choose and develop its political, social, economic and cultural systems.’ See Brownlie, ed., Basic Docu- ments, p. 44. 8An example of the usage of ‘sovereign equality’ of a small state against great powers is the Egyptian government’s complaint about the pres- ence of British troops in Egyptian territory. See Egypt and the United Nations: Report to a Study Group set up by the Egyptian Society of Inter- national Law (New York: Manhattan Publishing Company, 1957), pp. 76–83. 9US Department of State, International Control of Atomic Energy: Growth of a Policy (Washington, DC: United States Government Printing Ofﬁce, 1946), p. 219. This obstinacy can be seen in numerous Soviet statements. On the US proposal of the Atomic Development Authority, Andrei Vyshinsky, head of the Soviet delegation in the United Nations, expressed the view that it was a question ‘of totally liquidating the state sovereignty, as such, of all other states’. Quoted in Goodman, The Soviet Design, p. 401. A reply by Pravda to Bertrand Russell’s call for the creation of a world state was as follows: ‘Russell is shouting about the inevitable end of the world unless nations give up their national sovereignty and replace it by a world state headed by the U.S.A. and Britain.’ Quoted ibid., p. 399. As regards the Soviet opposition to the Western states on the issue of state sovereignty and human rights, see The United Nations and Human Rights: Eighteenth Report of the Commission to study the Organization of Peace (Dobbs Ferry, NY: Oceana, 1968), pp. 65, 127. By contrast, the appeal to the limitation of sovereignty by Western states in the General Assembly is seen in L. Larry Leonard, International Organization (New York: McGraw-Hill, 1951), p. 285. 10 Amos J. Peaslee, Constitution of Nations, III (The Hague: Martinus 198 Notes

Nijhoff, 1956), p. 487. The Declaration of Rights of the Peoples of Rus- sia on 15 November 1917 stipulates the ‘equality and sovereignty of the peoples of Russia’, and the ‘right of the peoples of Russia to free self-determination up to and including withdrawal and the forma- tion of an independent state’. See P. Yudin, ‘Socialism and Law’, originally published in Bolshevik 17 (1 September 1937), in Soviet Legal Philosophy, trans. by Hugh W. Babb (Cambridge, MA: Harvard University Press, 1937), p. 289. 11 Quoted from I.P. Trainin and I.D. Levin, eds., Sovetskoe gosudarstvennoe pravo, in Goodman, The Soviet Design, p. 122. 12 See T.A. Taracouzion, The Soviet Union and International Law (New York: Macmillan, 1935), pp. 26–47, and Julian Towster, Political Power in the U.S.S.R. 1917–1947: The Theory and Structure of Government in the Soviet State (New York: Oxford University Press, 1948), pp. 46–9, 109–15. 13 Quoted from Trainin, ‘Questions of Sovereignty in the Soviet Fed- eral State’ (1945), in Towster, Political Power, p. 113. 14 Nedbailo and Vassilenko, ‘Soviet Union Republics as Subjects of Inter- national Law’ (1963), quoted in Ivan Bernier, International Legal Aspects of Federalism (London: Longman, 1973), p. 23. 15 The views of the representatives of the USSR, Byelorussia and the Ukraine at the United Nations Conference on the Law of Treaties in 1969, quoted ibid., p. 24. This argument indicates the logic of positive freedom in contrast to negative. The logic of positive liberty was also used when the Baltic states were incorporated into the USSR in 1940. The Soviet puppet government in Lithuania declared: ‘The People’s Sejm of Lithuania is conﬁdent that only admission into the Union of Soviet Socialist Republics will insure the real sovereignty of the Lithuanian State.’ In the same vein a member of the Central Committee of the Romanian Communist Party responded in 1951: ‘Only now, when the reins of power are in the hands of governments led by Communists, have the peoples of these countries acquired, with the fraternal aid of the Soviet Union, genuine national independence and state sovereignty’. Quoted in Goodman, The Soviet Design, pp. 119–20. 16 Quoted in Mintauts Chakste, ‘Soviet Concepts of the State, Inter- national Law and Sovereignty’, American Journal of International Law 43(1) (1949), p. 31. This position led Korovin to demand the supremacy of national over international law. See Hans Kelsen, The Communist Theory of Law (London: Stevens & Sons, 1955), pp. 158–61. 17 Quoted in Chakste, ‘Soviet Concepts of the State’, p. 32. As regards several Soviet statements which identiﬁed socialist sovereignty as the only popular sovereignty, see Bernard A. Ramundo, The Soviet Social- ist Theory of International Law (Washington, DC: George Washington University, 1964), pp. 35–9. Andrei. J. Vyshinsky said in 1946, to challenge the sovereign right of Holland over Indonesia, that the Notes 199

UN Charter represented ‘certain limitation of sovereignty of sovereign states’. Quoted in Goodman, The Soviet Design, p. 114. In 1949 Izvestia recognised: ‘The Lenin–Stalin teaching on independence . . . of states by no means implies the acceptance of the principle of absolute sovereignty’ in terms of a treaty of alliance.’ Quoted in Jan F. Triska and Robert M. Slusser, The Theory, Law, and Policy of Soviet Treaties (Stanford: Stanford University Press, 1962), p. 211. By contrast, in 1948 Vyshinsky insisted: ‘Propaganda against national sovereignty disguised by attacks against absolute sovereignty was nothing but an ideological preparation for a country’s political surrender to a more powerful State and its economic might.’ Sovereignty was ‘the sole protector of the smaller countries against the expan- sionist dreams of more powerful States’. Quoted in Werner Levi, Fundamentals of World Organization (Minneapolis: University of Min- nesota Press, 1950), p. 32. The Foreign Minister W.M. Molotov in 1947 warned Poland and Czechoslovakia against the Marshall Plan for the sake of their sovereignty; and Cominform asked communists to seize national sovereignty in their own countries. The same anti- imperial and anti-US position led Stalin to remark in 1952, ‘Today the bourgeoisie sells the rights and independence of nations for dollars. The banner of national independence and national sovereignty has been thrown overboard. There is no doubt that you, the representatives of Communist and Democratic Parties will have to pick up this banner and carry it forward.’ Quoted in Goodman, The Soviet Design, pp. 114, 117. 18 See Robert A. Jones, The Soviet Concept of ‘Limited Sovereignty’ from Lenin to Gorbachev: The Brezhnev Doctrine (Basingstoke: Macmillan, 1990), pp. 1–19. 19 Korovin wrote in 1923: ‘While the general movement of the evolution of the European international law was towards restriction of the notion of sovereignty.... Soviet Russia appeared to be a cham- pion of the classical conception of sovereignty.’ Quoted in Kazimierz Grzybowski, Soviet Public International Law: Doctrines and Diplomatic Practice (Leyden: A.W. Sijthoff, 1970), p. 33. 20 V.V. Yevgenyev, International Law (n.d.), quoted in Cox, ed., The State in International Relations, p. 61. 21 See Grzybowski, Soviet Public International Law, pp. 459–64. 22 V.V. Yevgenyev, ‘The Subject of International Law’, in Academy of Science of the USSR Institute of State and Law, International Law: A Textbook for Use in Law Schools (Moscow: Foreign Language Publish- ing House, 1962), p. 98. 23 See Goodman, The Soviet Design, pp. 121–2. 24 E. Korovin, ‘Respect for Sovereignty: An Unchanging Principle of Soviet Foreign Policy’, International Affairs (Moscow) 11 (1956), pp. 32, 37–9. 25 E. Korovin, ‘Sovereignty and Peace’, International Affairs 2 (1960). 200 Notes

26 E. Korovin, ‘Disarmament and Sovereignty’, International Affairs 2 (1961). 27 E. Kuzmin, ‘Sovereignty and National Security’, International Affairs (12) (1966), pp. 17, 20. 28 S. Kovalev, ‘Sovereignty and International Duties of Socialist Coun- tries’, originally published in Pravda on 26 September 1968, in D.W. Bowett, The Search for Peace (London: Routledge & Kegan Paul, 1972), pp. 137–8, 141. See also Jones, The Soviet Concept, pp. 153–6. 29 G.I. Tunkin, Theory of International Law, trans. William E. Butler (Lon- don: George Allen & Unwin, 1974), p. 440. 30 Jones, The Soviet Concept, p. 90. 31 For instance, the Chinese Foreign Minister in 1942 stated: ‘China will gladly cede such of its sovereign power as may be required.’ The Chairman of the Chinese delegation to the United Nations Conference declared in his speech on 26 April 1945: ‘we must not hesitate to delegate a part of our sovereignty to the new international organization in the interests of collective security.’ Quoted in China Institute of International Affairs, China and the United Nations (New York: Manhattan Publishing Group, 1959), p. 23; see also pp. 64, 139. 32 See Yang Hsin and Ch’en Chien, ‘Expose and Criticize the Imperial- ists’ Fallacy Concerning the Question of State Sovereignty’, originally published in Cheng-fa yen-chiu (Political Legal Research) (4) (1964), in Jerome Alan Cohen and Hungdah Chiu, eds, People’s China and Inter- national Law: A Documentary Study (Princeton: Princeton University Press, 1974), pp. 110–11. 33 See James Chieh Hsiung, Law and Policy in China’s Foreign Relations: A Study of Attitudes and Practice (New York: Columbia University Press, 1972), pp. 72–9. 34 Ying T’ao, ‘A Criticism of Bourgeois International Law Concerning the Question of State Sovereignty’, originally published in Kuo-chi wen-t’I yen-chiu (3) (Studies in International Problem) (1960), in Cohen and Chiu, eds., People’s China and International Law, pp. 106–10. 35 Yang and Ch’en, ‘Expose and Criticize the Imperialists’ Fallacy’, pp. 110–17. See also Suzanne Ogden, ‘Sovereignty and International Law: The Perspective of the People’s Republic of China’, New York Univer- sity Journal of International Law and Politics 7(1) (1974), pp. 10–16, 22–30. 36 An example of a harsh Chinese criticism of the ‘renegade’ USSR in- vasion of Czechoslovakia is Chi Hsiang-yang, ‘Smash the New Tsars’ Theory of Limited Sovereignty’, originally published in Peking Re- view, 23 May 1969, in Cohen and Chiu, eds, People’s China and International Law, pp. 153–5. 37 Quoted from K’ung Meng, ‘A Criticism of the Theories of Capitalist International Law on International Entities and the Recognition of States’ (1960), in Ogden, ‘Sovereignty and International Law’, p. 17. Notes 201

For the argument that Tibet is not a state and China wields sovereignty over Tibet, see Yü Fan, ‘Speaking about the Relationship between China and the Tibetan Region from the Viewpoint of Sovereignty and Suzerainty’, originally published in Jen-min jih pao (People’s Daily), 5 June 1959, in Cohen and Chiu, eds, People’s China and International Law, pp. 395–404. 38 For instance, in advocating ‘the principle of racial sovereignty’, Ali A. Mazrui insisted: ‘For many nationalists in Africa and Asia the right to sovereignty was not merely for nation-states recognizable as such in a Western sense but for “peoples” recognizable as such in a racial sense, particularly where differences of colour were manifest.’ By deﬁning colonialism as ‘permanent aggression’, namely ‘a violation of racial sovereignty’, Mazrui proposed to extend the notion of ‘illegitimate sovereignty’ to a notion of ‘illegal sovereignty’. He continued that ‘if it was illegal to usurp the sovereignty of a people of different colour, it could not be illegal to attempt the restoration of that sovereignty’. Mazrui, Towards a Pax Africana: A Study of Ideology and Ambition (Chicago: University of Chicago Press, 1967), pp. 33–5, 39. 39 For instance, see the Pact of the Arab League (1945), Inter-American Treaty of Reciprocal Assistance (1947), the Charter of the Organiza- tion of American States (1948), the South-East Asia Treaty (1954), the 1954 Declaration by India and China (Five Principles of Peace- ful Coexistence), the 1955 Resolutions of the 29-nation Bandung Conference of (Ten Principles of Bandung), and the Charter of the Organization of African Unity (1963). The principle of sovereignty was also used in the North Atlantic Treaty (1949) and the Security Pact of Warsaw (1955) to smooth the concern of the aligned small states. See Marek Stanislaw Korowicz, ‘Some Present Aspects of Sov- ereignty in International Law’, Recueil des Cours de l’Académie de droit International de La Haye 102 (1961) pp. 33, 54–6, and Sohn, ed., Basic Documents of the United Nations, pp. 119, 125–8. 40 Brownlie, Basic Documents in International Law, p. 43. See also the ‘Separate Opinion of Vice-President Ammoun’ on the continued pres- ence of South Africa in Namibia in 1970. Judge Ammoun argued that the law that had denied a legal personality to Namibia under colonial and mandatory systems was obsolete. Namibia always constituted a subject of law, possessing national sovereignty but lacking the exercise thereof. It was because ‘sovereignty, which is inherent in every people, just as liberty is inherent in every human being, therefore did not cease to belong to the people subject to mandate.’ Reports of Judgments, Advisory Opinions and Orders, International Court of Justice (Leyden: Sijthoff, 1971), p. 68. ‘The self-determination of peoples is thus the basis of the sovereignty of the State. . . . Rela- tions in the international community cannot be imagined without respect for the sovereign rights of nations and peoples.’ Aureliu 202 Notes

Cristescu, The Right to Self-Determination: Historical and Current De- velopment on the Basis of the United Nations Instruments, E/CN.4/Sub.2/ 404/Rev.1 (New York: United Nations, 1981), p. 47. 41 Ibid., p. 72. 42 Adopted with a vote of 36-4-20. The United Kingdom and the United States were among the four countries which voted against the resolution. See ibid., p. 73; Nico Schrijver, Sovereignty over Natural Resources: Balancing Rights and Duties (Cambridge: Cambridge University Press, 1997), p. 48; A. Akinsanya, ‘Permanent Sovereignty over Natural Resources and the Future of Foreign Investment’, Nigerian Journal of International Affairs 5(1 and 2) (1979), p. 73; and Mannaraswamighala Sreeranga Rajan, Sovereignty over Natural Resources (Atlantic Highlands, NJ: Humanities Press, 1978), p. 16. 43 In the process, the UK representative insisted that every international treaty ‘involved a deliberate derogation of sovereignty’ and argued that ‘there was no such thing as “permanent” sovereignty, as was shown by the historical fact that States had in the past made voluntary cessions of territory’. See Schrijver, Sovereignty over Natural Resources, pp. 50–1, and Rudolf Dolzer, ‘Permanent Sovereignty over Natural Resources and Economic Decolonization’, Human Rights Law Journal (7) (1986), parts 2–4, p. 218. The United States and Great Britain voted against the 1955 Covenant on Human Rights as regards the right of states over natural resources, while the Afro-Asian–Arab group supported it. See Akinsanya, ‘Permanent Sov- ereignty’, pp. 73–4. 44 With a vote of 52-15-8. The US was among the countries voting against. See Cristescu, The Right to Self-Determination, and Akinsanya, ‘Permanent Sovereignty’, p. 74. 45 The resolution was adopted with a vote of 87-2-12. The UK and the US voted in favour of it, after having their joint amendments adopted. See Schrijver, Sovereignty over Natural Resources, pp. 57–81; Rajan, Sovereignty over Natural Resources, p. 20; and Somendu Kumar Banerjee, ‘The Concept of Permanent Sovereignty over Natural Resources: An Analysis’, Indian Journal of International Law 8(4) (1968), pp. 528–35. 46 See Brownlie, Basic Documents in International Law, pp. 237–8. 47 For instance, the General Assembly Resolution 2158 (XXI) of 1966 reiterated the principle of permanent sovereignty. It was adopted by a vote of 104-0-6, with the United States among the countries abstaining. Other examples are Resolution 2173 (1966), 2542 (1968) and 2692 (1970). See Cristescu, The Right to Self-Determination, p. 75, and Akinsanya, ‘Permanent Sovereignty’, pp. 79, 90. 48 Adopted by a vote of 102-0-22, with the US among the countries abstaining. See Akinsanya, ‘Permanent Sovereignty’, p. 90. Schrijver stresses that the titles of Resolution 2692 (XXV) and 3016 (XXVII) refer to ‘Permanent Sovereignty over Natural Resources of Developing Countries’. See Schrijver, Sovereignty over Natural Resources, p. 92. After Notes 203

the USA vetoed permanent sovereignty over natural resources as regards the Panama Canal proposed by Panama and Peru, the Security Council adopted Resolution 330 (1973) by 12 votes to none with 3 abstentions (France, the UK and the USA). It noted ‘with deep concern the existence and use of coercive measures which affect the free exercise of permanent sovereignty over the natural resources of Latin American countries’. See Cristescu, The Right to Self-Determination, p. 75, and Schrijver, Sovereignty over Natural Resource, pp. 159–60. 49 See Akinsanya, ‘Permanent Sovereignty’, p. 78. 50 Adopted with a vote of 108-1-16, with the United Kingdom voting against, and the United States, France, Japan and West Germany abstaining. Ibid., and George Elian, The Principle of Sovereignty over Natural Resources (Alphen aan den Rijn: Sijthoff & Noordhoff, 1979), p. 105. 51 Adopted without a formal vote. The United States, Japan, France, West Germany and the United Kingdom entered reservations to both resolutions. See Akinsanya, ‘Permanent Sovereignty’, p. 78. 52 Adopted with a vote of 120-6-10. The US and the UK among the countries voting against. See Brownlie, Basic Documents in International Law, pp. 240, 244–5. 53 For instance, the Economic Declaration of the Fourth Conference of Heads of State and Government of Non-Aligned Countries of 1973 stated: ‘The Heads of State or Government denounce before world public opinion the unacceptable practices of transnational compa- nies which infringe the sovereignty of developing countries and violate the principles of non-interference and the right of peoples to self- determination.’ See Cristescu, The Right to Self-Determination, p. 78. By contrast, the sole arbitrator, Depuy, in the Texaco v. Libya case decided that in terms of the voting patterns and other reasons, Reso- lution 1803 of 1962 seemed to reﬂect customary law but that the Charter of Economic Rights and Duties of States was a ‘political rather than legal declaration concerned with the ideological strategy of development and, as such, supported only by non-industrialized States’. See Robert B. von Mehren and P. Nicholas Kourides, ‘International Arbitrations Between States and Foreign Private Parties: The Libyan Nationalization Cases’, American Journal of International Law 75(3) (1981), p. 526. 54 See Wang Xuan, ‘Permanent Sovereignty of States over Natural Re- sources’, in Chinese Society of International Law, ed., Selected Articles from Chinese Yearbook of International Law (Beijin: China Translation & Publishing Corporation, 1983), p. 144. 55 Dolzer, ‘Permanent Sovereignty’, p. 222. It may be added that to a certain extent the development of the law of the sea was based on the same presupposition of national sovereignty over natural resources. The UN General Assembly in 1970 and 1972 adopted Resolutions 2692 (XXV) and 3016 (XXVII) expanding the permanent sovereignty 204 Notes

of the States over natural resources to the contiguous water zones and superjacent waters over the continental shelves. See Xuan, ‘Per- manent Sovereignty of States’, p. 131. See also Elian, The Principle of Sovereignty over Natural Resources, pp. 88–9. 56 Rilwanu Lukman, ‘OPEC: Collective or Individual Sovereignty?’, OPEC Bulletin 27(1) (1996), pp. 4–6. 57 See Rajan, ‘Sovereignty over Natural Resources’, pp. 39–100. 58 Ibid., pp. 40–61. 59 See Cristescu, The Right to Self-Determination, pp. 78–9. 60 Elian, The Principle of Sovereignty over Natural Resources, pp. 27–9, 71–2. 61 Wang, ‘Permanent Sovereignty of States’, pp. 125, 146. 62 Georges Abi-Saab, ‘Permanent Sovereignty over Natural Resources and Economic Activities’, in Mohammed Bedjaoui, ed., International Law: Achievements and Prospects (Paris: UNESCO, 1991), p. 602. 63 Ibid., p. 615. 64 Quoted in Elian, The Principle of Sovereignty over Natural Resources, p. 85. Waldheim also remarked in the 1975–6 annual report: ‘We live in a transitional period when the undoubted fact of increasing interdependence has by no means decreased the power or the prevalence of the concept of national sovereignty.’ Quoted in Rajan, ‘Sover- eignty over Natural Resouces’, p. 151. 65 It was not until the end of the 1960s that the universal system of international law became almost complete; the whole earth came to be covered with numerous ‘sovereign and equal’ nation-states. For instance, in contrast to the nineteenth-century orthodoxy of international law, nothing in the late 1960s contradicted the statement that ‘neutralized states are also sovereign states’. Furthermore, ‘the class of semi-sovereign states has become obsolete’. To the lawyers’ relief, in addition, ‘the former League of Nations mandates and those later transferred to the United Nations system as trust territories have all become independent nations’, with a few exceptions. William L. Tung, International Law in an Organizing World (New York: Thomas Y. Crowell, 1968), pp. 43–7. As regards the difﬁculty of the problem of sovereignty in trust territories in the early 1950s, see Hans Kelsen, The Law of the United Nations: A Critical Analysis of its Fundamental Problems (London: Stevens & Sons, 1950), pp. 688–94, and L. Larry Leonard, International Organization (New York: McGraw-Hill, 1951), pp. 509–14. 66 See Jones, The Soviet Concept, pp. 230–56. 67 Dolzer, ‘Permanent Sovereignty’, p. 230.

Chapter 8. Towards New Constitutional Sovereignty

1For instance, see two pro-EC Conservative Members of Parliament, Tufton Beamish and Norman St John Stevas, Sovereignty: Substance and Shadow (London: Conservative Political Centre, 1971). Edward Notes 205

Heath, British prime minister at the time of the entry into the EC, attributed the change in the meaning of sovereignty to interdependent international society. Heath, The Place of Sovereignty in an Interdependent World (London: Wyndham Place Trust, 1984). 2 See John Williamson, ‘Constraints on Economic Sovereignty’, in Michael Leifer, ed., Constraints and Adjustments in British Foreign Policy (London: George Allen & Unwin, 1972). See also William Wallace, The Illusion of Sovereignty (London: Unservile State Group, 1979). 3 See J.D.B. Mitchell, ‘The Sovereignty of Parliament and Community Law: The Stumbling-Block That Isn’t There’, International Affairs 55(1) (1979), pp. 33–46; M.A. Fazal, ‘Entrenched Rights and Parliamentary Sovereignty’, Public Law, incorporating the British Journal of Adminis- trative Law (winter 1974), pp. 295–315; and Chijioke Dike, ‘The Case against Parliamentary Sovereignty’, Public Law, incorporating the British Journal of Administrative Law (autumn 1976), pp. 283–97. But John Taylor argued that ‘losses of sovereignty’ were more apparent than real. Taylor, ‘British Membership of the European Communities: The Question of Parliamentary Sovereignty’, Government and Opposition 10(3) (1975). The orthodox interpretation was, as Roy Pryce said, that the British entry into the EC was not a surrender of sovereignty, but ‘the voluntary acceptance of self-imposed rules of conduct governing the exercise of sovereignty by a group of states’. Pryce, The Politics of the European Community (London: Butterworth, 1977), pp. 52–5. 4Christopher Brewin, ‘Sovereignty’, in James Mayall, ed., The Com- munity of States: A Study in International Political Theory (London: George Allen & Unwin, 1982), p. 35. 5F.S. Northedge and M.J. Grieve, A Hundred Years of International Rela- tions (London: Gerald Duckworth, 1971), pp. 342–3. 6For instance, compare Northedge with a contemporary publicist, D. J. Latham Brown, who identiﬁed two sovereigns that differed from Northedge’s notions of sovereignty. ‘Natural sovereignty’ is the degree of independence and concerns a relationship of power. Positive sovereignty is the limited internal authority. According to Brown, while internal sovereignty is limited and social, external sovereignty is natural and concerns power relationships. Brown, Public Interna- tional Law (London: Sweet & Maxwell, 1970), p. 11. 7F.S. Northedge, The International Political System (London: Faber & Faber, 1984; ﬁrst published in 1976), pp. 143–4. 8 C.A.W. Manning. ‘The Legal Framework in a World of Change’, in Brian Porter, ed., The Aberystwyth Papers: International Politics 1919– 1969 (London: Oxford University Press, 1972), p. 306. 9 Ibid., pp. 306–7. 10 Ibid., p. 308. 11 This point applies to English constitutional law in particular. 12 Alan James, ‘The Contemporary Relevance of National Sovereignty’, 206 Notes

in Michael Leifer, ed., Constraints and Adjustments in British Foreign Policy (London: George Allen & Unwin, 1972), pp. 17–19. 13 Ibid., p. 29. 14 Alan James, ‘International Society’, British Journal of International Society 4(2) (1978), pp. 103–4. 15 Ibid., p. 105. 16 See James, Sovereign Statehood, pp. 13, 23–5. This represents his for- malistic orientation. 17 With almost the same intention as James’s, David T. Llewellyn, in discussing monetary integration, distinguished ‘constitutional and effective sovereignty’. The former deﬁnes a national government’s ability to use instruments of policy at its own discretion and independently of other countries. The latter relates to the power of government to independently determine the value of signiﬁcant tar- get variables in the economy. Llewellyn, International Financial Integration: The Limits of Sovereignty (London: Macmillan, 1980), p. 198. See also Robert H. Jackson’s distinction between ‘the constitutive rules of the sovereignty game’ and ‘the instrumental part of the sovereignty game’. Jackson, ‘Quasi-States, Dual Regimes, and Neo- classical Theory: International Jurisprudence and the Third World’, International Organization 41(4) (1987), p. 522. See also Robert O. Keohane’s distinction between ‘formal sovereignty’ and ‘operational sovereignty’, in ‘Sovereignty, Interdependence, and International Institutions’, in Linda B. Miller and Michael Joseph Smith, eds, Ideas and Ideals: Essays on Politics in Honor of Stanley Hoffmann (Boulder: Westview, 1993), p. 91. 18 James, Sovereign Statehood, pp. 33–4. 19 Ibid., pp. 30–1. 20 Geoffrey L. Goodwin, ‘The Erosion of External Sovereignty’, in Ghita Ionescu, ed., Between Sovereignty and Integration (New York: John Wiley, 1974), pp. 101–2, 116. 21 Hedley Bull, The Anarchical Society: A Study of Order in World Politics (London: Macmillan, 1977), p. 8. 22 Ibid., p. 13. 23 Ibid., pp. 67–71, 48. 24 Ibid., p. xii. 25 Ibid., pp. 17–19. 26 Ibid., pp. 80–2. 27 Ibid., p. 86. 28 Ibid., p. 98. 29 Hedley Bull, Justice in International Relations (Waterloo: University of Waterloo, 1984), pp. 4, 6. 30 Ibid., pp. 11–12. 31 Ibid., p. 13. 32 Ibid., p. 18. 33 A similar method of analysing international society by means of the Notes 207

two concepts of sovereignty was developed by James Mayall in his argument of ‘prescriptive sovereignty’ and ‘popular sovereignty’ in Nationalism and International Society (Cambridge: Cambridge Univer- sity Press, 1990). 34 See Raymond Vernon, Sovereignty at Bay (London: Longman, 1971), p. 3. 35 Werner Levi, International Politics: Foundation of the System (Minne- apolis: University of Minnesota Press, 1974), pp. 72–5. 36 Kenneth N. Waltz, Theory of International Politics (Reading, MA: Addison- Wesley, 1979), p. 95. 37 Ibid., pp. 95–6. 38 Robert O. Keohane wrote: ‘Sovereignty and self-help mean that the principles and rules of international regimes will necessarily be weaker than in domestic society.... Yet even if the principles of sovereignty and self-help limit the degree of confidence to be placed in international agreements, they do not render cooperation impossible.’ Keohane, After Hegemony: Cooperation and Discord in the World Politi- cal Economy (Princeton: Princeton University Press, 1984), p. 62. 39 See Stephen D. Krasner, ‘Structural Causes and Regime Consequences’, in Krasner, ed., International Regimes (Ithaca, NY: Cornell University Press, 1983), p. 20. 40 Ibid., p. 2. 41 Ibid., pp. 17–18. 42 For instance, international regimes should be comprehended chiefly ‘as components of systems in which sovereignty remains a constitutive principle’. Keohane, After Hegemony, p. 63; Sovereign statehood is ‘the constitutive principle of international society’. Jackson, ‘Quasi- States, Dual Regimes, and Neoclassical Theory’, p. 519; ‘in our view sovereignty is a “constitutive principle” rather than an “institution”’. Alexander Wendt and Raymond Duvall, ‘Institutions and Inter- national Order’, in Ernst-Otto Czempiel and James N. Rosenau, eds, Global Changes and Theoretical Challenges: Approaches to World Poli- tics for the 1990s (Lexington, MA: Lexington Books, 1989), p. 69; ‘state sovereignty is the primary constitutive principle of modern political life.’ R.B.J. Walker, ‘Sovereignty. Identity, Community: Re- flections on the Horizons of Contemporary Political Practices’, in Walker and Saul H. Mendlovitz, Contending Sovereignties: Redefining Political Community (Boulder: Lynne Rienner, 1990), p. 157. 43 See Krasner, ‘Structural Causes and Regime Consequences’, pp. 366–7. In 1989 Krasner together with Janice E. Thomson insisted that ‘the commonplace notion that there is an inherent conflict between sovereignty and economic transaction is fundamentally misplaced. The consolidation of sovereignty – that is, the establishment of a set of institutions exercising final authority over a defined territory – was a necessary condition for more international economic transactions.’ Krasner and Thomson, ‘Global Transactions and the Consolidation 208 Notes

of Sovereignty’, in Czempiel and Rosenau, eds, Global Changes and Theoretical Changes, p. 198. 44 In the case of The Schooner Exchange v. McFaddon the court stipulated: ‘This full and absolute territorial jurisdiction being alike the attribute of every sovereign, and being incapable of conferring extra- territorial power, would not seem to contemplate foreign sovereigns, nor their sovereign rights, as its objects.’ See Burns H. Weston, Richard Falk and Anthony A. D’Amato, International Law and World Order: A Problem-Oriented Coursebook (St Paul, MN: West, 1980), p. 809. See also Sompong Sucharitkul, ‘Immunities of Foreign States before National Authorities’, Académie de Droit International Recueil des Cours 149 (1976), pp. 117–19. 45 See Sucharitkul, ‘Immunities of Foreign States’, pp. 126–82. 46 See Lakshman Marasinghe, ‘The Modern Law of Sovereign Immu- nity’, Modern Law Review 54(5) (1991), pp. 664–84. 47 See Hersch Lauterpacht, ‘The Problem of Jurisdictional Immunities of Foreign States’, originally published in 1951, in Lauterpacht, In- ternational Law 3, pp. 317–22. 48 The issue in the late 1970s was how to deal with the state having engaged in activities in the private sphere, i.e. ‘a sovereign, having gone into the marketplace’. Rosalyn Higgins, ‘Recent Development in the Law of Sovereign Immunity in the United Kingdom’, Ameri- can Journal of International Law 71(3) (1977), pp. 433–4. The point is not whether the state has private and public faces or not, but whether priority should be given to the public nature of the state or the logic of the marketplace. 49 See Phillip J. Cooper, ‘The Supreme Court on Governmental Liabil- ity: The Nature and Origins of Sovereign and Ofﬁcial Immunity’, Administration and Society 16(3) (1984), p. 272. 50 See Sucharitkul, ‘Immunities of Foreign States’, p. 120. See also J. Gillis Wetter’s explanation of the ‘act of state’ doctrine in contrast to the prohibition of sovereign immunity in international arbitra- tion. Wetter, ‘Pleas of Sovereign Immunity and Act of Sovereignty before International Arbitral Tribunals’, Journal of International Arbi- tration 2(1) (1985), p. 16. 51 See Leon Hurwitz, The State as Defendant: Governmental Accountabil- ity and the Redress of Individual Grievances (London: Aldwych Press, 1981), pp. 20–2, and Cooper, ‘The Supreme Court on Governmental Liability’, p. 269. 52 See Weston, et al., International Law and World Order, pp. 810–12. 53 The effect of the FSIA and the State Immunity Act 1978 upon ‘the ﬁnancial community’ is discussed in Georges R. Delaume, ‘Public Debt and Sovereign Immunity: The Foreign Sovereign Immunities Act of 1976’, American Journal of International Law 73(2) (1977), and F.A. Mann, ‘The State Immunity Act 1978’, The British Year Book of International Law (London, Oxford University Press, 1979). Delaume Notes 209

also analyses the State Immunity Act in comparison with the FSIA in ‘The State Immunity Act of the United Kingdom’, American Jour- nal of International Law 71(3) (1979). See also Charles N. Brower, F. Walter Bistline, Jr. and George W. Loomis, Jr, ‘The Foreign Sovereign Immunities Act of 1976 in Practice’, American Journal of International Law 73(2) (1979). 54 M. Boguslavskij, Staatliche Immunitat 40–44 (trans. Rathfelder 1965), quoted in Weston et al., International Law and World Order, p. 814. 55 See Bernard Fenserwald, ‘Sovereign Immunity and Soviet State Trad- ing’, Harvard Law Review 63(4) (1950), pp. 633–4. 56 See Weston et al., International Law and World Order, pp. 814–15. 57 See Richard I. Fine’s remarks in ‘Sovereign Immunity, Act of State, OPEC’, American Society of International Law: Proceedings of the 74th Annual Meeting (Washington, DC: American Society of International Law, 1980), p. 77. 58 See Louis Henkin, The International Bill of Rights (New York: Colum- bia University Press, 1981). 59 The International Convention on the Elimination of All Forms of Racial Discrimination of 1965, the Convention for the Elimination of All Forms of Discrimination Against Women of 1979, the Con- vention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984. In addition, there are a number of regional agreements including the European Convention of Human Rights of 1950, the Final Act of the CSCE conference in 1975 known as the Helsinki Accord, the American Convention of Human Rights of 1969, and the African Charter on Human and People’s Rights of 1981. The last African example is different from Western counter- parts in that it stipulates duties of individuals to the state. 60 Richard Falk, Human Rights and State Sovereignty (New York: Holmes & Meier, 1981), pp. 3–4. As regards the different interpretations of human rights by American and Soviet lawyers, see Jennifer Noe Pahre, ‘The Fine Line between the Enforcement of Human Rights Agree- ments and the Violation of National Sovereignty: The Case of the Soviet Dissidents’, Loyola of Los Angels International and Comparative Law Journal 7 (1984). 61 Richard Falk, Reviving the World Court (Charlottesville: University Press of Virginia, 1986), pp. 3–4. 62 Anthony D’Amato, International Law: Process and Prospect (Dobbs Ferry, NY: Transnational, 1987), pp. 159–60. D’Amato also argued that sovereign immunity was only a rule for nineteenth-century positivists. The Alien Tort Claims Act of 1789 proved that there was no general concept of sovereign immunity in the law of nations at that time. In addition, sovereign immunity does not mean that sovereignty is not subject to international law. See ibid., pp. 199–204. 63 In the post-Stalin era there appeared numerous textbooks and statements in the Soviet Union that emphasised the compatibility of 210 Notes

sovereignty and international law. See Grzybowski, Soviet Public In- ternational Law, p. 34. See also Bernard A. Ramundo, Peaceful Coexistence: International Law in the Building of Communism (Baltimore: Johns Hopkins University Press, 1967), pp. 91–2; Richard J. Erickson, Inter- national Law and the Revolutionary State: A Case Study of the Soviet Union and Customary International Law (Dobbs Ferry, NY: Oceana, 1972), pp. 50–2; and Allan Gotlieb, Disarmament and International Law: A Study of the Rule of Law in the Disarmament Process (Toronto: Canadian Institute of International Affairs, 1965), pp. 33–8. As regards the constitutional provision of popular sovereignty and the gradual change in its unitary character from the end of the 1960s, see Ottó Bihari, The Constitutional Models of Socialist State Organization (Budapest: Akadémiai Kiadó, 1979), pp. 111–28. An example of praise of the 1977 Constitution of the USSR is V.T. Kabyshev, ‘Social-Psychological Aspects of Popular Sovereignty in the USSR’, Soviet Law and Govern- ment 19(4) (1981). As an example of the reformulation of sovereignty in the 1980s, see B. Kurashvili, ‘Toward Sovereignty of the Soviets’, Soviet Law and Government 28(1) (1989), in which Kurashvili made some proposals to restore sovereignty of the Soviets referring to the principle of the ‘separation of powers’. The attitude of Chinese international lawyers also changed in accordance with political changes. See Ogden, ‘Sovereignty and International Law’, pp. 30–1.

Chapter 9. Conclusions

1 See Robert H. Jackson, Quasi-States: Sovereignty, International Relations and the Third World (Cambridge: Cambridge University Press, 1990). 2 Naeem Inayatullah and David L. Blaney, ‘Realizing Sovereignty’, Re- view of International Studies 21(1) (1995), p. 4. Michael Barnett argues that after the end of the Cold War there was a renewed belief of international society in empirical (internal) sovereignty which un- derpins juridical (external) sovereignty. Barnett, ‘The New United Nations Politics of Peace: From Juridical Sovereignty to Empirical Sovereignty’, Global Governance 1(1) (1995), p. 83. 3David Campbell insists that ‘we have to ask whether or not the realist’s commitment to the principle of sovereignty is (ironically) an instance of idealism in our postmodern world, where the rigid defense of sovereign communities located in a radically interdependent economy of violence could exacerbate many of the perils from which we seek to be secure.’ Campbell, Politics without Principle: Sovereignty, Ethics, and the Narratives of the Gulf War (Boulder: Lynne Rienner, 1993), p. 82. Timothy W. Luke writes: ‘Political realism, sovereign territoriality, Cold War: the meanings of all these terms are unstable, variable and unﬁxed.... Old in-stated forms of governmentality, sovereignty and monotoriality after the Cold War are reconstituted in the un-stated spaces of contragovernmentality, Notes 211

sovrantee and multitorialities in a New World Disorder.’ Luke, ‘Governmentality and Contragovernmentality: Rethinking Sovereignty and Territoriality after the Cold War’, Political Geography 15(6/7) (1996), p. 506. 4‘One asks how we have so easily forgotten about the concrete struggles. . . . This question is concerned with how the formalization of state sovereignty as the primary constitutive principle of modern political life reifies the practices of state sovereignty.’ Walker, ‘Sover- eignty, Identity, Community’, pp. 159–60. 5 R.B.J. Walker, Inside/Outside: International Relations as Political Theory (Cambridge: Cambridge University Press, 1993), p. 170. 6Michael J. Shapiro, ‘Moral Geographies and the Ethics of Post- Sovereignty’, Public Culture 6(3) (1994), p. 480. His conception of sovereignty connected to issues like ‘the authorship of texts’ is certainly beyond ‘state sovereignty’. See Shapiro, ‘Sovereignty and Exchange in the Orders of Modernity, Alternatives: Social Transforma- tion and Humane Governance 16(4) (1991). 7‘The construction of sovereignty allows us to make more sense of the will-to-sacrifice’. ‘A postsovereign politics’ is ‘a politics that shifts the focus of political loyalty and identity from sacrifice (actual or in situ) to responsibility.’ Jean Bethke Elshtain, ‘Sovereignty, Identity, Sacrifice’, Social Research 58(3) (1991), pp. 402–3. 8For instance, see some remarks on sovereignty by practitioners. Geoffrey Howe states that ‘the British have always adopted a pragmatic attitude towards constitutional changes and assumed the simple principle of sovereignty as a “good servant, but bad master”.’ According to Howe, sovereignty is something like a ‘bundle of sticks, and the subject of a never-ending series of transactions between nation-states, handing over some things and taking back others’. Howe, ‘Sover- eignty and Interdependence: Britain’s Place in the World’, International Affairs 66(4) (1990), pp. 78–80. See almost the same argument in Leon Brittan, Globalization vs. Sovereignty? The European Response (Cam- bridge: Cambridge University Press, 1998). Former US Secretary of State George Shultz states: ‘The model of divided sovereignty – part of the fabric of our own country since its birth – has become appli- cable on the international scene at large.’ Quoted in Howe, ‘Sovereignty and Interdependence’, p. 681. The advocacy of divided or shared sovereignty is also discussed in James Gow, ‘Shared Sovereignty, Enhanced Security’, in Sohali H. Hashmi, ed., State Sovereignty: Change and Persistence in International Relations (University Park: Pennsylva- nia State University Press, 1997), pp. 178–9. 9‘Viewed as products of modernity, the sovereign individual and the sovereign state can be seen as mutually reinforcing constructs, a relationship captured in the dual meaning of the word, “subject.”’ Tom Porter, ‘Postmodern Political Realism and International Rela- tions Theory’s Third Debate’, in Claire Turenne Sjolander and Wayne 212 Notes

S. Cox, eds, Beyond Positivism: Critical Reflections on International Re- lations (Boulder: Lynne Rienner, 1994), p. 113. See also Joseph Dunne, ‘Beyond Sovereignty and Deconstruction: The Storied Self’, Philoso- phy and Social Criticism 21(5/6) (1995). 10 ‘Investigating state sovereignty, then, requires investigating how states are simulated.’ Weber, Simulating Sovereignty, p. 129. This statement challenges the nationalist assumption of the autonomy of nation- states. However, a set of codes that determines simulations of states may be called a system of constitutional rules. 11 Alexander Wendt and Daniel Friedman, ‘Hierarchy under Anarchy: Informal Empire and the East German State’, in Biersteker and We- ber, eds, State Sovereignty as Social Construct, pp. 272, 246. See also Ronald L. Jepperson, Alexander Wendt and Peter J. Katzenstein, ‘Norms, Identity, and Culture in National Security’, in Katzenstein, ed., The Culture of National Security: Norms and Identity in World Politics (New York: Columbia University Press, 1996). 12 Ibid. 13 This suggests the political nature of ‘globalization’. Saskia Sassen argues that globalization that threatens sovereignty ‘has become in the most recent period a form of Americanization’. Sassen, Losing Control? Sovereignty in an Age of Globalization (New York: Columbia University Press, 1996), pp. 16–20. 14 If we define sovereignty as ‘the state’s ultimate authority to decide the social order’, according to Janice E. Thomson, ‘state sovereignty has not declined; it has simply changed its form’ in relation to private corporations. Thomson, ‘State Sovereignty in International Relations: Bridging the Gap between Theory and Empirical Research’, International Studies Quarterly 39(2) (1995). It is striking that Joseph A. Camilleri and Jim Falk use the expression ‘popular sovereignty’ as an antonym of state sovereignty in the context of the erosion of sovereignty. Consciously or unconsciously, their standpoint disregards the premise of unitary ‘national sovereignty’ and proposes ‘government’ sovereignty. In consequence, they seem to believe that the enumeration of non-state phenomena is tantamount to the analysis of the erosion of sovereignty. Camilleri and Falk, The End of Sover- eignty?, pp. 114, 120. 15 Justin Rosenberg argues that ‘the sovereignty of the state does de- pend on both a kind of abstraction from production and the reconstitution of the state-political sphere as external to civil society’. According to him, ‘if we define sovereignty as the social form of the state in a society where political power is divided between public and private spheres’, the problem of sovereignty is resolved. Rosenberg, The Empire of Civil Society: A Critique of the Realist Theory of International Relations (London: Verso, 1994), pp. 128–9. 16 For the compatibility of sovereignty with international cooperation, see for instance Thomas May, ‘Sovereignty and International Order’, Notes 213

Ratio Juris 8(3) (1995), and Judith H. Bello, ‘National Sovereignty and Transnational Problem Solving’, Cardozo Law Review 18(3) (1996). 17 See Thomas Christiansen, European Integration between Political Sci- ence and International Relations Theory: The End of Sovereignty? (San Domenico: European University Institute, 1994). Shirley Williams examines ‘the loss of sovereign national power’ to the European Community. See Williams, ‘Sovereignty and Accountability in the European Community’, Political Quarterly 61(3) (1990), pp. 299–317. But Ian Harden argues that British sovereignty is compatible with European monetary union. See Harden, ‘Sovereignty and the Eurofed’, Political Quarterly 61(4) (1990), pp. 402–14. 18 For instance, see Paul Taylor, ‘British Sovereignty and the European Community: What Is at Risk?’, Millennium: Journal of International Studies 20(1) (1991), and Gavin Smith, ‘Why Sovereignty Matters’, in Patrick Robertson, ed., Reshaping Europe in the Twenty-First Century (London: Macmillan, 1992). As regards parliamentary sovereignty, see, for instance, H.E.R. Wade, ‘Sovereignty: Revolution or Evolu- tion’, Law Quarterly Review 112 (October 1996); T.R.S. Allan, ‘Parliamentary Sovereignty: Law, Politics, and Revolution’, Law Quarterly Review 113 (July 1997); and Mark Elliot, ‘The Demise of Parliamen- tary Sovereignty? The Implications for Justifying Judicial Review’, Law Quarterly Review 115 (January 1998). 19 Noel Malcolm, strongly supporting the deﬁnition of sovereignty as ‘constitutional independence’, deplores the lack of clarity in the usage of the word, sovereignty, among politicians. Malcolm, Sense on Sov- ereignty (London: Centre for Policy Studies, 1991). It would be interesting to see, for instance, the statement by Robin Cook, then the Labour Party’s Shadow Foreign Secretary: ‘It might be necessary to trade part of national sovereignty if it is in the national interest. Sovereignty is not total but relative.’ Quoted in Neill Nugent, ‘Sov- ereignty and Britain’s Membership of the European Union’, Public Policy and Administration 11(2) (1996). 20 Eli Lauterpacht, ‘Sovereignty: Myth or Reality?’, International Affairs 73(1) (1997), p. 147. ‘So far as sovereignty within the British legal system is concerned it is a reality.... With regard to sovereignty on the international plane, that must be seen largely as myth – except when it is used as a word to describe a state’s title to territory.... The state remains a sovereign state in international law and continues to be able to guide its future destiny within the limits that it has itself accepted.’ Ibid., p. 149. Michael Newman distinguishes between several meanings of sovereignty and concludes in the context of the European Union that ‘the concept of sovereignty is so ambiguous and distorted that it is now a barrier to analysis’. Newman, Democracy, Sovereignty and the European Union (London: Hurst & Company, 1996), pp. 14–15. 21 See Neil MacCormick, ‘After Sovereignty: Understanding Constitutional Chage’, King’s College Law Journal 9 (1998–9). 214 Notes

22 For instance, Sanford Lakoff argues that ‘sovereignty is unlikely to disappear, but it will have to coexist with new forms of government in which mechanisms of federalism will provide for more limited forms of self-determination by states and subordinate entities’. Lakoff, ‘Between Either/Or and More or Less: Sovereignty versus Autonomy under Federalism’, Publius 24(1) (1994), p. 76. 23 Discussing tax matters, Bradley C. Karkkainen suggests that, unlike ‘American style dual sovereignty’, ‘the European constitutional architecture appears to be evolving in such a way as to leave the center as the junior partner, and its member states as the senior partners, in a cooperative federal scheme’. Karkkainen, ‘Comment: Concep- tions of Fiscal Federalism: Dual and Shared Sovereignty’, Columbia Journal of European Law 2(3) (1996). The description of the European Union as ‘a mixed commonwealth’ and its open-ended constitutionalisation of sovereignty is discussed in Richard Bellamy and Dario Castiglione, ‘Building the Union: The Nature of Sover- eignty in the Political Architecture of Europe’, Law and Philosophy 16(4) (1997). 24 It is true that in relation to subnational levels, ‘Subsidiarity reduces the question of sovereignty to one of efﬁciency. Without the emo- tional and historical appeal of the classical vision of sovereignty, the state is reduced to a functional jurisdiction’. Paul D. Marquardt, ‘Subsidiarity and Sovereignty in the European Union’, Fordham Inter- national Law Journal 18(2) (1994), pp. 636–7. 25 Anne Orford, ‘The Uses of Sovereignty in the New Imperial Order’, Australian Feminist Law Journal 6 (March 1996), p. 71. 26 See the concept of ‘transovereignty’ for non-state ‘powerful political entities’, in Timothy P. Terrell and Bernard L. McNamee, ‘Transovereignty: Separating Human Rights from Traditional Sover- eignty and the Implications for the Ethics of International Law Practice’, Fordham International Law Journal 17(3) (1994). In order to explain some of the powers traditionally associated with statehood, but granted to non-state actors, Celia R. Taylor discusses the idea of sovereignty as a ‘sovereign bundle of sticks’ in ‘A Modest Proposal: Statehood and Sovereignty in a Global Age’, University of Pennsylvania Journal of International Economic Law 18(3) (1997). 27 Ken Conca, ‘Environmental Protection, International Norms, and State Sovereignty: The Case of Brazilian Amazon’, in Gene M. Lyons and Michael Mastanduno, eds, Beyond Westphalia? State Sovereignty and International Intervention (Baltimore: Johns Hopkins University Press, 1995), p. 153. The same insistence can be found in Karen T. Liftin, ‘The Greening of Sovereignty: An Introduction’, in Liftin, ed., The Greening of Sovereignty in World Politics (Cambridge, MA: MIT Press, 1998). Peter Penz concludes that ‘accepting notions such as divided or shared sovereignty may smooth the road for institutional change’. Penz, ‘Environmental Victims and State Sovereignty: A Normative Notes 215

Analysis’, Social Justice 23(4) (1996). William R. Moomaw calls for a ‘softening of sovereignty’ in ‘International Environmental Policy and the Softening of Sovereignty’, Fletcher Forum of World Affairs 21(2) (1997). 28 For instance, Ali Khan advocates the conception ‘free state’ which ‘is rooted in the global forces of economic interdependence and human rights’ in opposition to the concept of the sovereign nation-state. Khan, ‘The Extinction of Nation-States’, American University Journal of International Law and Policy (1992), p. 234. 29 The Bangkok Declaration that reflected Asia’s official views affirmed the principle of ‘respect for national sovereignty’ together with ‘the non-use of human rights as an instrument of political pressure’. The head of the Chinese delegation at the United Nations World Con- ference on Human Rights in Vienna stated: ‘To wantonly accuse another country of abuse of human rights and impose the human rights criteria of one’s own country or region on other countries or regions are tantamount to an infringement upon the sovereignty of other countries and interference in the latter’s internal affairs, which could result in political instability and social unrest in other countries. . . . State sovereignty is the basis for the realization of citizens’ human rights. If the sovereignty of a state is not safeguarded, the human rights of its citizens are out of the question, like a castle in the air.’ Quoted in Michael C. Davis, ed., Human Rights and Chinese Values: Legal, Philosophical, and Political Perspectives (Oxford: Oxford University Press, 1995), p. 17. A critique of politics of relativism is Anne F. Bayefsky, ‘Cultural Sovereignty, Relativism, and International Human Rights: New Excuses for Old Strategies’, Ratio Juris 9(1) (1996). 30 The Under Secretary-General for Humanitarian Affairs, Jan Eliasson, contends that ‘sovereignty is no longer a principle we can recognise as absolute’. Quoted in James Ingram, ‘The International Response to Humanitarian Emergencies’, in Kevin Clements and Robin Ward, eds, Building International Community: Cooperating for Peace Case Studies (St Leonards, Australia: Allen & Unwin, 1994), p. 185. James N. Rosenau finds that, far from being absolute, states are conceived to be ‘sovereignty-bound actors’ due to ‘responsibilities and obligations’, while non-state actors are ‘sovereignty-free’. Rosenau, Turbulence in World Politics: A Theory of Change and Community (New York: Harvester Wheatsheaf, 1990), pp. 36–40. In a similar vein, the writers for the Brookings Institution contend that ‘sovereignty carries with it certain responsibilities for which governments must be held accountable’. Francis M. Deng, Sadikiel Kimaro, Terrence Lyons, Donald Rothchild and William I. Zartman, Sovereignty as Responsibility: Conflict Man- agement in Africa (Washington, DC: Brookings Institution, 1996). It is interesting in this context that sovereignty is sometimes attached to the individual, which might be called ‘libertarian sovereignty’. See, for example, John Hoffman, Sovereignty (Buckingham: Open 216 Notes

University Press, 1998), and James M. Buchanan, ‘Federalism and Individual Sovereignty’, Cato Journal 15(2/3) (1995/6). 31 It is noteworthy that the defect of the sovereign nation-state in the Third World is not pointed out by people in the Third World, but by the critics of ‘statism’ in Western societies. For instance, see Mark E. Denham and Mark Owen Lombardi, eds, Perspectives on Third-World Sovereignty: The Postmodern Paradox (London: Macmillan, 1996). 32 For instance, Jeff J. Corntassel and Tomos Hopkins Primeau insist that indigenous groups should ‘refrain from using phrases such as “self-determination” and “sovereignty” and instead focus upon gaining state guarantees of the maintenance of cultural integrity’, and ‘pursue these collective rights through existing human rights declarations and treaties’. Corntassel and Primeau, ‘Indigenous “Sovereignty” and International Law: Revised Strategies for Pursuing “Self-Determination”’, Human Rights Quarterly 17(2) (1995), p. 362. Linda S. Bishai advocates reconceptualising territorial-state sovereignty for minorities in ‘Sovereignty and Minority Rights: Interrelations and Implications’, Global Governance 4(2) (1998). 33 ‘Pérez de Cuéllar Discusses Sovereignty and International Responsi- bility’, Review of the International Commission of Jurists 47 (1991), pp. 24, 26, 27. 34 ‘Sovereignty, in the end, is status – the vindication of the state’s existence as a member of the international system. In today’s set- ting, the only way most states can realize and express their sovereignty is through participation in the various regimes that regulate and order the international system.’ Abram Chayes and Antonia Handler Chayes, The New Sovereignty: Compliance with International Regulatory Agreements (Cambridge, MA: Harvard University Press, 1995), p. 27. See also Kurt Mills, Human Rights in the Emerging Global Order: A New Sovereignty? (London: Macmillan, 1998). Roland A. Brand emphasises that the role of the sovereign is to provide security and therefore strengthen the international rule of law. See Brand, ‘Exter- nal Sovereignty and International Law’, Fordham International Law Journal 18(5) (1995). Alec Stone claims that ‘the distinction between international regimes and domestic constitutional forms is relative not absolute’. Stone, ‘What is a Supranational Constitution? An Es- say in International Relations Theory’, Review of Politics 56(3) (1994), p. 474. Tom J. Farer observes that ‘at least in Europe and the West- ern Hemisphere, the concept of sovereignty evolved from a jurisdictional authority perceived in early modern times as supreme, absolute, and boundless to an authority bounded by international law and based on the will of its subjects’. Farer, ‘Collectively De- fending Democracy in a World of Sovereign States: The Western Hemisphere’s Prospect’, Human Rights Quarterly 15(4) (1993), p. 721. ‘Judicial institutions, such as the ICJ are key to the development of an International rule of law.’ Christyne J. Vachon, ‘Sovereignty ver- Notes 217

sus Globalization: The International Court of Justice’s Advisory Opinion on the Threat or Use of Nuclear Weapons’, Denver Journal of Inter- national Law and Policy 26(4) (1998), p. 697; ‘International criminal law . . . tests the validity and efﬁcacy of an international law that has to trump or limit sovereignty.... The creation and functioning of the ad hoc Tribunal . . . is . . . a serious commitment to the viabil- ity of the international rule of law in our time.’ Winston P. Nagan, ‘Strengthening Humanitarian Law: Sovereignty, International Crimi- nal Law and the Ad Hoc Tribunal for the Former Yugoslavia’, Duke Journal of Comparative and International Law 6(1) (1995); Ruth Lapidoth also discusses the ‘erosion’ of sovereignty by certain rules of modern constitutional and international law. Lapidoth, ‘Sovereignty in Transition’, Journal of International Affairs 45(2) (1992), pp. 325–46. Michael Ross Fowler and Julie Marie Bunck’s insistence that ‘it is ultimately the international community that determines whether a particular political entity qualiﬁes as a sovereign state’ seems to point in the same direction. Fowler and Bunck, ‘What Constitutes the Sovereign State?’, Review of International Studies 22(4) (1996). They also distinguish between ‘sovereigntyism’, which stresses the just and legal sanctity of the state, and nationalism, which ignores the current order. Fowler and Bunck, Law, Power, and the Sovereign State: The Evolution and Application of the Concept of Sovereignty (University Park: Pennsylvania State University Press, 1996), pp. 156–7. Interest- ingly, Henry H. Perritt, Jr argues that while the Internet is a threat to sovereignty of non-liberal states, it rather strengthens the conception of sovereignty favoured in the liberal political tradition and facilitates the rule of law within and across national borders. Perritt, ‘The Internet as a Threat to Sovereignty? Thoughts on the Internet’s Role in Strengthening National and Global Governance’, Indiana Global Legal Studies 5(2) (1998). The phrase ‘constitutional sovereignty’ is used by some scholars. For instance, Philip Allot argues that in the process of ‘the theoretical evolution of the idea of democracy’ into the disappearance of sovereignty in ‘self-willed order’, the sovereign nation evolves into ‘constitutional sovereignty (functional limits on sovereignty)’ and then into ‘limited sovereignty (constitutionalism – generic principles of the constitution)’. Allot, Eunomia: New Order for a New World (Oxford: Oxford University Press, 1990), pp. 207–18. Colin Warbrick uses the phrase ‘formal constitutional sovereignty’ denoting the legal essence of sovereignty. Warbrick, ‘The Principle of Sovereign Equality’, in Vaughan Lowe and Colin Warbrick, eds, The United Nations and the Principles of International Law: Essays in Memory of Michael Akehurst (London: Routledge, 1994), p. 206. By insisting that sovereignty is a ‘mistake’, Louis Henkin argues that ‘states have made non-conventional constitutional law to ordain basic values. . . . On the horizon of the new century is international commitment to “constitutionalism,” constitutional government, and 218 Notes

the rule of law.’ Henkin, ‘Sibley Lecture, March 1994: Human Rights and State “Sovereignty”’, Georgia Journal of International Law and Comparative Law 25(1/2) (1995/6). 35 See Richard Falk, Robert C. Johansen and Samuel S. Kim, ‘Global Constitutionalism and World Order’, and Falk, ‘The Pathways of Global Constitutionalism’, in Falk, Johansen and Kim, eds, The Constitu- tional Foundation of World Peace (Albany, NY: State University of New York Press, 1993). See also Luigi Ferrajoli ‘Beyond Sovereignty and Citizenship: A Global Constitutionalism’, in Richard Bellamy, ed., Constitutionalism, Democracy and Sovereignty: American and European Perspectives (Aldershot: Avebury, 1996). 36 Almost the only exception is Stanley W. Johnston, who argues that the United Nations appears to be a world state. See Johnston, Realising the Public World Order (Leicester: Centre for the Study of Public Or- der, 1993). Instead, Anthony Carty provides a pessimistic picture of a still decentralised international legal community of Vattelian sovereign states. Carty, ‘Sovereignty in International Law: A Concept of Eternal Return’ in Laura Brace and John Hoffman, eds, Reclaiming Sovereignty (London: Pinter, 1997). ‘The international constitution’ and ‘the constitution of sovereignty’ in the non-legal sense are discussed in Daniel Philpott, ‘Ideas and the Evolution of Sovereignty’, in Hashmi, ed., State Sovereignty, and J. Samuel Barkin, ‘The Evolu- tion of the Constitution of Sovereignty and the Emergence of Human Rights Norms’, Millennium 27(2) (1998). 37 Intervention interpreted as a means to implement ‘appeal to heaven’ accords with the Lockean classic constitutionalism. Almost the same argument without mentioning Locke is sketched in Louis W. Goodman, ‘Democracy, Sovereignty, and Intervention’, American University Jour- nal of International Law and Policy 9(1) (1993). Samuel M. Makinda recognises a shift from government to popular sovereignty as the characteristic feature of the post-Cold War notion of sovereignty, and points out a possibility of the international society being divided into two or more groups with orthodox and non-orthodox versions of state sovereignty. See Makinda, ‘The United Nations and State Sovereignty: Mechanism for Managing International Security’, Australian Journal of Political Science 33(1) (1998). James C. O’Brien insists that the Security Council’s intervention may often protect sovereignty of afﬂicted states. O’Brien, ‘Sovereignty and the Security Council’, in Don M. Snider and Stuart J.D. Schwartzstein, eds, The United Nations at Fifty: Sovereignty, Peacekeeping, and Human Rights (Washington, DC: Center for Strategic and International Studies, 1995). However, it is true that the way humanitarian interventions is justiﬁed is not strictly established. See Elizabeth E. Ruddick, ‘The Continuing Constraint of Sovereignty: International Law, International Protection, and the Internally Displaced’, Boston University Law Journal 77(2) (1997). 38 Thomas G. Weiss and Jarat Chopra argue that political scientists and Notes 219

international relations theorists have formulated ‘a corruption of sovereignty’ by admitting degrees of sovereignty. According to them, sovereignty either exists or does not exist in international law; therefore, ‘it is becoming a dead letter’. Weiss and Chopra, ‘Sovereignty under Siege: From Intervention to Humanitarian Space’, in Lyons and Mastanduno, eds, Beyond Westphalia?, pp. 99–100. But international lawyers know that without sovereignty there is no ‘international’ law. They know that neither sovereignty nor international law has always been absolute. The most orthodox and widely acknowledged view of sovereignty in the 1990s is still the much-cited statement by an ex-international lawyer, Boutros Boutros-Ghali. According to the former UN General Secretary, ‘Respect for fundamental sovereignty and integrity are crucial to any common international progress. The time of absolute and exclusive sovereignty, however, has passed.’ Ghali, An Agenda for Peace (New York: United Nations, 1992), p. 44. Bontros-Ghali also writes: ‘While respect for the fundamental sovereignty and integrity of the state remains central, it is undeniable that the centuries-old doctrine of absolute and exclusive sovereignty no longer stands, and was in fact never so absolute as it was conceived to be in theory. A major intellectual requirement of our time is to rethink the question of sovereignty – not to weaken its essence, which is crucial to international security and cooperation, but to recognize that it may take more than one form and perform more than one function.’ Ghali, ‘Empowering the United Nations’, Foreign Affairs 72(5) (1992/3), pp. 98–9. See also the approval by his successor in ‘An Interview with U.N. Secretary General Koﬁ A. Annan’, Fletcher Forum of World Affairs 21(2) (1997). 220 Index

Index

Abi-Saab, Georges, 128, 204 Brezhnev, Leonid, 120, 199 Allot, Philip, 217 Brown, D.J. Latham, 205 American Revolution, 36, 71 Brown, O.A., 59, 176 Annan, Koﬁ A., 219 Brownlie, Ian, 194 anthropomorphism (of nations), Buchanan, James, 58, 176 23, 53, 99, 130, 141, 148, Bull, Hedley, 136–9, 141, 157, 153, 161 165, 206 Anti-Federalists, 38, 40–1; see also Bunck, Julie Marie, 217 new Anti-Federalists Burton, John, 109, 194 Articles of Confederation, 37, 80 Austin, John, 50–1, 74, 86, 87, Calhoun, John C., 57, 175, 176 167, 173 Camilleri, Joseph A., 163, 212 Campbell, David, 210 Baker, Philip J.N., 90, 186 Carr, E.H., 88, 91–3, 101, 107, Baldwin, Simeon E., 69, 181 123, 188 Barker, Ernest, 67, 181 Carty, Anthony, 218 Barkin, Samuel, 218 Charter of Economic Rights and Barnett, Michael, 210 Duties of States, 124, 203 Bartelson, Jens, 5, 8, 163 Charter of the United Nations, Benn, Stanley I., 107, 193 see United Nations Bentham, Jeremy, 35, 92, 168 Chayes, Abram, 216 Berlin, Isaiah, 165, 193 Chayes, Antonia Handler, 216 Beveridge, William, 101, 190 Ch’en Chien, 121, 200 Bevin, Ernst, 101, 190 Chipman, Nathaniel, 42, 171 Bill of Rights, 27, 45; see also Chopra, Jarat, 218–9 international bill of rights Chou En-lai, 121 Bishai, Linda S., 216 civil society, 18, 22, 94, 156–7, Blackstone, William, 30, 167 212 Blaney, David L., 210 Civil War Bluntschli, Johan C., 49, 110, 172 English Civil War, 24, 28–9 Bodenheimer, Edgar, 93, 188 American Civil War, 34, 56–60, Bodin, Jean, 8, 13, 109–10, 164, 62, 77, 80, 94, 104–5, 152, 166, 179 155, 182 Bosanquet, Bernard, 53, 87, 174 Clark, Grenville, 195 Brand, Roland, 216 classical age, 12–19, 24–35

220 Index 221

Clayton, Joseph C., 70, 181 global constitutionalism, 160, Coke, Edward, 166 218 Cold War, 1, 8, 23, 99, 100, 103, international constitutionalism, 106, 108, 113, 114, 117, 122, 20, 23, 61, 63, 67, 71, 81, 128, 139, 142, 153, 155, 210, 82, 84, 91, 93, 99, 100, 211 106, 131, 149, 150, 152–6, Conca, Ken, 159, 214 161, 218 Concert of Europe, 4, 51, 54, 57 new international Constitution, 18, 29, 34, 43, 71, constitutionalism, 23, 130, 74, 76, 85, 87–8, 104, 133, 147, 150, 156 159, 185 constructivism, 157 British Constitution, 20, 30–1, Cooley, Thomas M., 59, 176 36, 46, 49–51, 87 Corntassel, Jeff J., 216 Confederate States Corwin, Edward S., 101–2, 191 Constitution, 175 Cousin, Victor, 47, 172 Dutch Constitution, 34 Crane, Robert T., 62, 173 French Constitution, 45–6, 52 Cristescu, Aureliu, 127, 202 German Constitutions, 172–3 Massachusetts Constitution, 36 Dalton, Hugh, 89, 186 New York Constitution, 59, 177 D’Amato, Anthony, 148, 209 US Constitution, 38–44, 46, 49, Davies, David, 91, 187 57, 58, 59, 61, 64, 68, 69, 70, Davis, Jefferson, 58, 176 72, 73, 80, 89, 96, 98, 144, de Cuéllar, Pérez, 160, 216 169, 170, 171, 175, 195 de Jouvenel, Bertrand, 9, 164 USSR Constitution, 117, 210 Declaration of Independence, 36, Weimar Constitution, 84 64, 74, 80 world (international) Declaration of the Granting of Constitution, 55, 65, 70, Independence to Colonial 71, 80, 84, 98, 107, 111, Countries and Peoples, 122 130, 133, 139, 142, 149, Declaration of the Rights of Man 161, 185, 193, 218 and Citizen, 45 constitutionalism, 8, 19–22, 27, 46, Declaration on Principles of 71, 74, 79, 84, 86, 87, 105, International Law concerning 120, 124, 131, 139, 148, 151, Friendly Relations and Co- 161, 165, 173, 182, 217 operation among States in American constitutionalism, Accordance with the Charter 36–7, 57, 63–4, 72, 78, 80, of the United Nations, 122, 86, 88, 105, 144, 184 197 anthropomorphic Declaration on the Establishment constitutionalism, 153 of a New International British constitutionalism, 15, Economic Order, 124 25, 36, 53, 63, 64, 66, 80, decolonisation, 23, 107, 114, 86, 88, 92, 105, 138, 184 122–3, 125, 154 Classical constitutionalism, 24, democracy, 8, 11, 30, 43, 47, 65, 30, 36, 39, 46, 50, 53, 62, 71, 95, 111, 176, 184, 217 75, 144, 158, 218 democratisation, 56 222 Index

Denham, Mark E., 216 Foucault, Michel, 5, 8, 12, 15–6, derogation from sovereignty, 164 66–7, 106, 180, 202 Fowler, Michael Ross, 217 diachronic perspective, 8, 12, Franklin, Julian, 166 151–4 French Revolution, 16, 45–6, 49, Dicey, A.V., 51–2, 54, 55–6, 91, 71, 80, 151–4 131, 137, 152, 173 Friedman, Daniel, 157, 212 Dickinson, Edwin E., 196 Friedmann, Wolfgang, 91, 187, Dickinson, John, 94, 188 194–5 Dimock, Marshall E., 93, 188 Friedrich, Carl J., 165, 195–6 domestic analogy, 23, 50, 133, 136, 137, 150 Garner, James W., 97, 189 Dominions of the British Empire, Genealogy of Morals, 8, 19, 164 54, 90, 96 General Assembly of the United Duguit, Léon, 82–3, 184 Nations, see United Nations Ghali, Boutros Boutros-, 219 Eagleton, Clyde, 97, 189 Glorious Revolution, 24–5, 27, 33 Elian, George, 127, 204 golden mean, 20, 27, 57, 94, 106, Elliot, W.Y., 93, 188 138, 165 Elshtain, Jean Bethke, 211 Goodman, Louis W., 218 English School, 132–9, 141, 143, Goodwin, Geoffrey, 135, 206 157 great powers, 53–6, 61, 65–7, 72, episteme (épistémè), 8, 12, 14, 15, 76, 78–80, 115, 116, 174, 197 50, 151 Greaves, H.R.G., 89, 186 Eulau, Heinz, 95, 188 Green, T.H., 53, 173 European Community (EC), 107, Grieve, M.J., 132, 205 131, 135, 194, 205, 213; see Grimke, Frederick, 42–3, 171, 175 also European Union Gromyko, Andrei, 116 European Union (EU), 159, 213, Grotian tradition, 19, 107, 141, 157 214; see also European Grotius, Hugo, 19, 21, 46, 165, 196 Community Guizot, François, 48, 172

Falk, Jim, 163, 212 Halleck, H.W., 61, 178 Falk, Richard, 148, 209, 218 Hamilton, Alexander, 38, 41, 169 Farer, Tom J., 163, 216 Hegel, G.W.F., 5, 8, 49, 65, 73, Federalists, 22, 37, 38–41, 46, 85, 92, 156–7, 172 166, 169, 186; see also Anti- Henkin, Louis, 209, 217–8 Federalists; new Federalists Henry, Patrick, 40, 170 Federn, Robert, 101, 190 Hershey, Amos S., 62, 178 Fenwick, Charles G., 96, 178, 189 Higgins, Rosalyn, 208 Fine, Richard, 147, 209 Hill, Chesney, 190 First World War, 55, 62, 63, 80, Hill, David J., 71–2, 181 82, 90, 108, 123, 152, 153, Hinsley, F.H., 3–4, 10, 109, 163, 155 164, 194 Foreign Sovereign Immunities Act Hobbes, Thomas, 8, 13–7, 25, 28, (FSIA), 146–7, 208–9 86, 109, 137, 164, 166 Index 223

Hocking, William E., 93, 188 intervention, 1, 6–7, 33, 112, Holdsworth, William, 88, 185 118, 119, 148, 161, 183, 2180 Holy Alliance, 47, 48 non-intervention, 115, 145, Hopkins, Raymond F., 141 154, 196 Howard-Ellis, C., 89, 186 Howe, Geoffrey, 211 Jackson, Robert H., 206, 207, 210 human (individual) rights, 1, 11, James, Alan, 3, 4, 134–5, 136, 20, 26–32, 36, 71, 72, 88, 163, 205–6 107, 123, 131, 135, 138–9, Jameson, John A., 60, 177 143, 148–50, 160, 161, 165, Jefferson, Thomas, 57, 169 169, 170, 197, 202, 209 Jellinek, Georg, 49 Jenks, C. Wilfred, 108, 193, 195 idealism, 210; see also utopianism Jenks, Edward, 91, 187 imperialism, 45, 50, 56, 62, 71, Johnston, Stanley, W., 218 72, 120, 121, 152, 153, 155 Jones, Robert, 89, 186 Inayatullah, Naeem, 210 Jones, Robert A., 120, 199 interdependence, 78, 97, 121, jure gestionis and jure imperii, 114, 139, 204, 215 146 international Bill of Rights, 107, justice, 34, 43, 47–8, 62, 69, 72, 148 136–9 international community, see international society Kant, Immanuel, 49, 172 international constitutionalism, Kaplan, Abraham, 110, 194 see constitutionalism Kaplan, Morton A., 112, 196 International Court of Justice, see Karkkainen, Bradley C., 214 United Nations Katzenbach, Nicholas de B., 112, international law, 7, 53–6, 61–2, 196 63, 66–7, 69, 83, 89–91, Keen, F.N., 91, 187 95–7, 101–3, 107–8, 112, 119, Keeton, George W., 91, 187 121, 122, 126, 127, 132–3, Kelsen, Hans, 83, 184, 197, 204 136, 142, 150, 158, 168, 178, Keohane, Robert, 141, 206, 207 179, 182, 186, 189, 192, 195, Kerr, Philip (Marquis of Lothian), 198, 199, 204, 209, 213, 88–9, 90, 186 216–17, 219 Khan, Ali, 215 international rule of law, see rule Korff, S.A., 93, 188 of law Korovin, E., 118, 119, 198, 199, international society, 1–2, 4, 6, 7, 200 11, 19, 20, 50, 53, 55, 56, 62, Kovalev, S., 120, 200 80, 82, 85, 90, 92, 97, 99, Krabbe, H., 83–4, 184 102, 107, 108, 111, 112, 114, Krasner, Stephen D., 141, 142, 117, 119, 130–9, 141, 142, 207 143, 147, 149, 150, 155, 159, Kuzmin, E., 119, 200 160, 161, 162, 205, 206, 207, 210, 218 Laband, Paul, 49 international system, 1, 41, 155, Ladd, William, 61–2, 178 216 Lakoff, Sanford, 214 224 Index

Lansing, Robert, 73, 76–81, 183 Maistre, Joseph de, 47–8, 80, 172 Lapidoth, Ruth, 217 Makinda, Samuel M., 218 Laski, Harold, 85–7, 93, 184 Malcolm, Noel, 213 Lasswell, Harold D., 110, 194 mandate system, see League of Lauterpacht, Eli, 158, 213 Nations Lauterpacht, Hersch, 107, 144, Manning, C.A.W., 132, 134, 135, 165, 193, 208 136, 205 law of nations, 17–18, 33, 35, 44, Manning, William O., 54, 174 53, 109, 209 Mao Tse-tung, 121 Lawrence, T.J., 65–6, 174, 180 Marburg, Theodore, 64, 68, 179, Lawson, Geroge, 25, 166 180, 181 League of Nations, 22, 63–72, 82, Margalith, Aaron M., 97, 189 89, 95, 96, 180, 183, 186, Maritain, Jacques, 110, 194 189, 204 Marquardt, Paul D., 214 Covenant of the League of Maxley, Edwin, 178 Nations, 63, 64, 68, 70, 71, Mayall, James, 205 78, 96–7, 182, 187, 189, 196 Mazrui, Ali A., 201 mandate system, 78–9, 90, McIlwain, C.H., 10, 94, 164, 188 96–7, 186, 201, 204 Merriam, Charles E., 102, 171, 191 League to Enforce Peace, 63, 68, Middlebush, Frederick A., 190 182 Mills, Kurt, 216 Levi, Werner, 140, 207 Minor, Raleigh C., 70, 181 Levin, I.D., 118 modern age, 7–9, 11, 12, 15–18, Lewis, Ewart, 10, 164 19, 20, 22, 35, 36, 45, 52, 53, liberalism, 8, 84, 86, 92, 93, 102, 84, 99, 151–3, 168, 172, 192 129, 139, 141, 147, 150, 152, modernity, 9–11, 12, 15, 157, 211 157, 169, 184, 217 Monroe Doctrine, 56, 61, 64, 68, Lieber, Francis, 59, 177 115, 144, 196 Liftin, Karen, 214 Moomaw, William R., 215 Lincoln, Abraham, 58–9, 105, 176 Morgenthau, Hans, 100, 103–6, Lindsay, A.D., 87, 185 107, 112, 139–40, 141, 153, Llewellyn, David T., 206 192 Locke, John, 19, 22, 25–7, 28, 30, Morley, Felix, 97, 190 32, 46, 74, 76, 92, 102, 137, Mower, Edmund C., 97, 190 166–7, 192, 218 Mulford, E., 59–60, 177 Lockean model, 25–7, 36, 39, 52, 86, 135–7, 152, 160, 166, Nagan, Winston P., 217 169, 218 nation(s) Lodge, Henry C., 70, 181 equality of, 53–5, 61–2, 66–8, Lombardi, Mark Owen, 216 78, 103 Luke, Timothy W., 211 personality of, 83, 151 Lukman, Rilwanu, 125, 204 rights of, 80, 201 society of, 53, 68, 97 MacIver, R.M., 88, 185 see also states; law of nations Madison, James, 37–9, 41, 169, 171 nationalisation of sovereignty, 56, Mair, L.P., 89, 186 59, 155 Index 225

nationalism, 19, 45, 49, 56, 62, British parliament, 16, 27, 30–2, 89, 90, 92, 99, 109, 111, 126, 51–2, 55, 88, 131, 146, 152, 128, 151, 152, 153, 154, 165, 166, 193, 204 217 European parliament, 33–5 natural law (law of nature), 13, Frankfurt parliament, 173 25, 26, 27, 29, 36, 50 Peace of Westphalia, 8, 14, 55, neorealism, see realism 192; see also Westphalian new Anti-Federalists, 61, 70–2, 80 system new Federalists, 68–70, 72 peoples new international consent of, 24–5, 30, 36, 51, constitutionalism, see 69, 75–6, 77, 80, 85, 95, constitutionalism 132, 166 Newman, Michael, 213 rights of, 123–4, 126, 198, 203 Nietzsche, Friedrich, 7, 8, 19, see also sovereignty 151, 164 Penn, William, 33–5, 168 non-governmental organisations Penz, Peter, 214 (non-state actors), 6, 107, Pergler, Charles, 97, 189 159, 212, 214, 215 Perritt, Henry H., 217 non-intervention, see intervention Philpott, Daniel, 218 Northedge, F.S., 132, 205 Pollock, Frederick, 67, 180 Pomeroy, J.N., 59, 177 O’Brien, James C., 218 Porter, Tom, 211 OPEC, 125, 127, 147 post-Cold War 156, 162, 218 Oppenheim, Lassa F., 55–6, 64–5, postmodernism 174, 180 (poststructuralism), 156 order, 12–18, 23, 27, 34, 39, 47, Primeau, Thomas Hopkins, 216 49, 104, 135, 136–9, 141, private and public spheres, 124, 155, 190, 194, 217 143, 144–6, 147, 150, 161, constitutional order, 27, 35, 80, 208, 212 161 Puchala, Donald J., 141 economic order, 125 international order, 23, 53, 63, Radin, Max, 94, 188 67, 78, 80–1, 84, 86–7, 91, realism, 91–2, 141, 156, 157 98, 101, 105, 106, 116, political realism, 93, 100, 103, 118, 138–9, 155, 187, 197 210 legal order, 83, 90, 91, 94, 125 structural realism (neorealism), mechanistic order, 14, 15, 17, 140–1 151 regime political order, 14, 33, 46 domestic regime, 95, 118 public order, 26 international regime, 128, social order, 212 141–2, 207, 216 Order of Things, The, 8, 12, 164 theory of, 139, 141–2 Orford, Anne, 159, 214 reiﬁcation of sovereignty, 22, 49, 59, 66, 77, 79, 82, 153 Parkinson, James, 28, 167 Renaissance, 12, 13, 89 parliament Ress, W.J., 107, 193 226 Index

rights, see human rights; nations; absolute theory of, 143–5 peoples; sovereign rights; restrictive theory of, 131, states 143–7, 148 Rosenau, James N., 196, 207, 215 sovereign power, 21, 28–9, 30–1, Rosenberg, Justin, 212 37, 38, 42, 50, 51, 66, 69, 75, Ruddick, Elizabeth E., 218 83, 86, 88, 111, 148, 166, rule of law, 19, 52, 66, 72, 84, 177, 187, 190, 200 88, 92, 93–5, 101, 102, 105, sovereign rights, 117–18, 124, 106, 112, 138, 217 125, 138, 159, 178, 187, 193, international rule of law, 88, 201, 208 96, 101, 111, 113, 160, sovereignty 216, 217, 218 absolute sovereignty, 25–6, 29–30, 31, 42, 48, 66, 68, Salus Populi Suprema Lex, 27, 28, 71, 78, 84, 86, 89, 91, 97, 167, 168 98, 105, 125, 126, 127, Sassen, Saskia, 212 128, 138, 143, 145, 157, Schleicher, Charles P., 111, 195 160, 183, 199 Schmitt, Carl, 84–5, 95, 105, 110, constitutional sovereignty, 184 19–22, 24–5, 35, 38–9, Schuman, Frederick, 98, 190 41–4, 50, 56, 59, 78, 99, Schwarzenberger, Georg, 108, 100–2, 105, 112, 116, 123, 138, 193–4 129, 130, 151, 152, 155, Scott, James Brown, 178, 181, 189 156, 157, 158, 159, 162, Second World War, 8, 88, 93, 99, 217 100, 103, 106, 110, 114, 116, divided sovereignty, 31, 37, 40, 145, 153, 194 41–3, 56–7, 59, 62, 69, 90, Security Council of the United 96, 104, 117, 121, 170, Nations, see United Nations 171, 182, 211 self-determination, 72, 76, 78, 79, exerciser of sovereignty, 21–2, 117, 118, 122, 123, 125, 126, 37, 39, 52, 74 127, 190, 198, 201, 203, 214, external sovereignty, 42, 62, 216 90, 92, 132, 133–6, 171, Shapiro, Michael J., 211 180, 187, 205, 210 Sherman, S.S., 89, 186 internal sovereignty, 42, 62, 87, Skinner, Quentin, 10, 164 90, 92, 132, 134–6, 171, Smith, Adam, 15, 32, 168 205, 210 Sohn, Louis B., 195 legal sovereignty, 52, 56, 84, Sommerville, J.P., 24, 166 91, 94, 111, 152 Sorokin, Pitirim A., 102, 191 limited sovereignty, 29, 30, 36, sovereign and subjects, 17, 29, 38, 42, 51, 61, 62, 67, 68, 33, 35, 48, 56, 168, 184, 216 73, 79, 82, 83, 88, 91, 96, sovereign authority, 16, 27–8, 84, 97, 101, 106, 108, 111, 86, 105, 167, 184 112, 117, 118, 120, 130, sovereign equality, 114–16, 128, 138, 169, 180, 186, 195, 153, 154, 196, 197 205, 217 sovereign immunity, 143–7, 208, 209 national sovereignty, 19–23, 36, Index 227

44, 45–62, 68–72, 73, Spahr, Margaret, 102, 191–2 78–80, 83, 85–99, 105, 106– Stalin, Joseph, 199 12, 114–28, 140, 143, 145, Stallybrass, W.T.S., 66, 180 147, 149, 151–62, 187, 195, Stankiewicz, W.J., 109, 194 197, 199, 201, 203, 204, state(s) 213, 215 equality of, 54, 61, 67–8, 103, non- (half-, imperfect, not-full, 108, 115, 196 part-, quasi-, semi-,) nation-state, 18, 21, 33, 49, 50, sovereignty, 49, 50, 54, 55, 53, 94, 97, 99, 101, 153, 62, 66, 101, 104, 108, 118, 154, 157, 160, 201, 204, 138, 154, 171, 174, 179, 211, 212, 215,216 204 rights of, 65, 137, 202 parliamentary sovereignty, 27, society of, 54, 136 30, 51–2, 55, 131, 152, 193, state personality, 7, 14, 16, 213 18, 19, 21, 60, 77, 83, permanent sovereignty over 115, 133 natural resources, 123–8, state system, 4, 14, 98 138, 143, 146, 147, 148, see also nation(s) 203 State Immunity Act, 146, 208 political sovereignty, 51–2, 56, statism, 6, 92, 139, 141, 148, 59, 73, 88, 91, 126, 131, 156, 157, 216 137, 173 Stephens, Alexander H., 58, 176 popular sovereignty, 24, 28, 39, Stone, Alec, 216 42–4, 46, 48, 51, 57, 58–9, Story, Joseph, 41, 171 60, 71, 72–6, 93, 95, 118, Streit, Clarence K., 42, 195 119, 122, 137, 152, 156, supreme authority, 32, 93, 104 160–1, 171, 176, 177, 185, Supreme Court of the United 198, 207, 210, 212, 218 States, 41, 59, 62, 69, 143, rights of sovereignty, 29, 30, 144, 145, 170, 171 31, 38, 41, 96, 137 supreme power, 10, 25–7, 28, 42, source of sovereignty, 21, 22, 57, 76, 110, 137 37, 39, 42, 52, 74, 75, 161; synchronic perspective, 8, 18, see also derogation; 151, 154 nationalisation; reiﬁcation; sovereign and subjects; Taft, William H., 63, 68–9, 70, sovereign authority and 71, 179, 181 power; sovereign equality; Tanney, Joseph P., 98, 190 sovereign rights; Temple, William, 34, 35, 168 sovereignty above the Thomas, Hedley, 166 sovereigns; sovereignty as a Thomson, Janice E., 207, 212 constitutive principle, Tocqueville, Alexis de, 43–4, 171 sovereignty above the sovereigns, Treitschke, Heinrich von, 50, 85, 46, 47, 49 156, 173 sovereignty as a constitutive Tucker, George F., 61, 178 principle, 130, 136, 142, 206, Tunkin, G.I., 120, 200 207, 211 Tyrrell, Frank G., 102, 191 228 Index

United Nations, 1, 108, 111, 116, Washington, George, 39, 71 117, 123, 126, 163, 200, 204, Weber, Cynthia, 2, 5–6, 163, 218 212 International Court of Justice Webster, Daniel, 57, 175 (ICJ), 118, 121, 201, 216 Weiss, Thomas G., 218–19 plan for the United Nations, Wendt, Alexander, 157, 207, 212 70, 191 Westlake, John, 54, 174 UN Charter, 102, 111, 114, Westphalian system, 1, 14, 154, 122, 123, 192, 195, 196, 192, 196; see also Peace of 197, 199 Westphalia UN Committee on Wheaton, Henry, 61, 177 International Organization, Wight, Martin, 165 197 Wilks, Michael, 10, 164 UN General Assembly, 122, Williams, John F., 91, 186, 187 123–4, 126, 127, 148, 192, Willkie, Wendell L., 101, 191 197, 202, 203 Willoughby, W.W., 60, 69, 177 UN International Law Wilson, Francis G., 94, 188 Commission, 102 Wilson, George G., 61, 178 UN Security Council, 2, 116, Wilson, Woodrow, 63, 68, 71, 163, 203, 218 73–6, 78, 79–80, 105, 179, utopianism, 88, 91–2, 107, 142; 182, 183 see also idealism Wood, Henry A. Wise, 71, 181 Woolf, Leonard S., 101, 180, 190 Vachon, Christyne J., 216 Woolsey, Theodore D., 61, 178 Váli, F.A., 90, 186 Wright, Quincy, 96, 111, 189, 194

Waldheim, Kurt, 128, 204 Yang Hsin, 121, 200 Walker, R.B.J., 156, 207, 211 Ying T’ao, 200 Waltz, Kenneth, 140–1, 142, 207 Young, Oran R., 141 Wang Xuan, 127, 203 Warbrick, Colin, 217 Zimmern, Alfred, 64, 179