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Cartographies of the Present: ‘Contingent Sovereignty’ and Territorial Integrity

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Netherlands Yearbook of International Law 2016

Part of the book series: Netherlands Yearbook of International Law ((NYIL,volume 47))

Abstract

Sovereignty as territorial integrity has been recast by state legal advisors, diplomats and scholars, who employ terms and principles from international law while disregarding the content of the law. This chapter takes up the apparent permeability of borders in contemporary discourses and practices of military intervention. In spaces of alleged terrorist activity the relationship between state and territory has been called into question, and the global legal imaginary of sovereign states is separated de facto into actual sovereigns and ‘contingent’ sovereigns. The claim that ineffective internal sovereignty may justify intervention forms part of a broader reconfiguration of the relationship between sovereignty and territory. Drawing upon insights from political geography, this chapter uses ‘contingent sovereignty’ as a critical diagnosis. It focuses on contemporary practices of drone warfare and emerging justifications for intervention that are premised upon a state’s unwillingness or inability to confront internal threats. It argues that the international legal order is recast in these cartographic projections, where territory operates as a political technology for preserving certain populations.

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Notes

  1. 1.

    Shaw 1982, at 61.

  2. 2.

    Ibid., at 66.

  3. 3.

    Sassen 2009, at 574.

  4. 4.

    Brown 2010. Some critical international legal scholarship has noted the shift from sovereign control over natural resources to the protection of foreign investors; see Pahuja 2011.

  5. 5.

    Agnew 1994. For a contemporary revisiting of this post-Cold War critique, see Agnew 2010, Elden 2010, and McConnell 2010.

  6. 6.

    Handl et al. 2012.

  7. 7.

    Kritsiotis 2009, at 547. For an account of the ongoing resilience of sovereignty as an organizing category in international law and international relations in spite of contemporary challenges, see Aalberts 2012.

  8. 8.

    See for example UN GA Resolution 1514 (XV) on 14 December 1960, ‘Declaration on the Granting of Independence to Colonial Countries and Peoples’, and UN GA Resolution 2625 (XXV) on 24 October 1970, ‘Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States ’, recognizing the importance of sovereign equality and territorial integrity.

  9. 9.

    Schmitt 2013, at 97.

  10. 10.

    See the 2016 ‘Symposium on the Fight Against ISIL and International Law’ in the Leiden Journal of International Law 29, which largely employs the UN Charter based recourse to force and international humanitarian law frameworks.

  11. 11.

    Koskenniemi 2006.

  12. 12.

    Put another way, the parole in which political justifications are spoken may point back to a background langue other than international law. This structuralist terminology, employed by some contemporary international legal thinkers following Koskenniemi , draws upon the work of structural linguist Ferdinand de Saussure. For an account of structuralism in legal scholarship, see Desautels-Stein 2015.

  13. 13.

    This claim assumes a position within existing debates in international legal scholarship regarding the role and value of interdisciplinary research. On the challenges of interdisciplinarity , in particular concerning international relations, see Klabbers 2009 and Kratochwil 2012. For an argument supporting interdisciplinarity in international legal scholarship, see Kendall 2016.

  14. 14.

    Elden 2006, at 14. While this idea was developed during the Bush administration, Elden claims in a subsequent publication that it continued through the Obama administration; see Elden 2009.

  15. 15.

    Gregory 2011, at 248. Scholars in other fields have observed that the post-9/11 security paradigm has blurred the boundaries between internal and external; see for example Beck 2002, who argues that a world risk society emerged from these shifts.

  16. 16.

    Elden 2013, at 322.

  17. 17.

    Ibid., at 17. We can add insights from interdisciplinary legal scholarship that draws upon critical theory, philosophy, and history, as Jothie Rajah does in her account of law as a record that appears not only in legal doctrine, but also in ‘[i]mages, sound, gesture, affect, and feeling’ that help in tracing the limited and largely unofficial archive of Osama bin Laden’s death. Rajah 2016, at 46.

  18. 18.

    Shaw 1982, at 62.

  19. 19.

    Derrida 1998. Building on Derrida’s work, Renisa Mawani explains that ‘[l]aw’s archive is a site from which law derives its meanings, authority, and legitimacy, a proliferation of documents that obscures its originary violence and its ongoing force, and a trace that holds the potential to reveal its foundations as (il)legitimate.’ Mawani 2012, at 337.

  20. 20.

    Shaw elaborates: ‘Territory therefore plays not only a definitional role, but a constitutive one historically as well. It is the link between a people, its identity as a state and its international role. It has thus been of crucial importance in Westphalian international law’; see Shaw 1982, at 63.

  21. 21.

    For a growing body of literature, a key orienting text is Antony Anghie’s Imperialism Sovereignty and the Making of International Law; see Anghie 2005. Michel Foucault also notes the relationship between Westphalia and jus gentium in his lectures entitled ‘Security, Territory, Population’; see Foucault 2007.

  22. 22.

    Foucault 1977. For an explanation of Foucault’s genealogical approach as a historiographic method for scholarship in law and criminology, see Garland 2014.

  23. 23.

    Dreyfus and Rabinow 1982, at 119.

  24. 24.

    Gregory 2013, at 158.

  25. 25.

    Elden 2009, at 139. Elden notes an early articulation of contingent sovereignty in a 1998 U.S. policy document, where the authors argue that states ought to be obliged to reassure the international community that they are not developing weapons of mass destruction, and ‘[f]ailure to supply such proof, or prosecute the criminals living in their borders, should entitle worried nations to take all necessary actions for their self-defence.’ Elden 2006, at 14. Not only a security-related concept, ‘contingent sovereignty’ has also been used in humanitarian discourses. Mark Duffield has noted how the aid industry in the Cold War period became a way of routing political influence through humanitarianism as part of the ‘emergence of contingent sovereignty’, as well as its relationship to the ‘responsibility to protect’. Duffield 2007, at 70–81.

  26. 26.

    Elden attributes this language of ‘earned sovereignty’ to the Washington, D.C.-based Public International Law and Policy Group (PILPG), defined by Michael Scharf as ‘a concept that seeks to reconcile the principles of self-determination and humanitarian intervention with the principles of sovereignty and territorial integrity.’ Scharf 2003, at 374, as noted in Elden 2009, at 166.

  27. 27.

    Aalberts 2014.

  28. 28.

    Ibid., at 783.

  29. 29.

    Munro 2014.

  30. 30.

    Ibid., at 260.

  31. 31.

    Aalberts 2014, at 787.

  32. 32.

    Munro 2014, at 234.

  33. 33.

    Aalberts and Werner 2011, at 2185. Their article addresses the UN Counterterrorism Committee as one institutional site where state disciplining takes place.

  34. 34.

    For an account of the mandate system in relation to African decolonization, see Grovogui 1996.

  35. 35.

    Shaw 1982, at 61.

  36. 36.

    Elden 2013, 322–323.

  37. 37.

    Elden 2009, at 3.

  38. 38.

    Kennedy 2006, at 12. On the different framings of the concept, see Werner 2011.

  39. 39.

    Austin 1962.

  40. 40.

    Patrick 2004, as noted in Elden 2006, at 15.

  41. 41.

    Elden 2006, at 21.

  42. 42.

    Chamayou 2015, at 53.

  43. 43.

    Ibid., at 56.

  44. 44.

    Gunneflo 2016, at 82. In its December 2016 Report on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations’, the U.S. government contends by contrast that ‘[t]he unable or unwilling standard is not a license to wage war globally or to disregard the borders and territorial integrity of other States.’ Available at https://www.justsecurity.org/wp-content/uploads/2016/12/framework.Report_Final.pdf, accessed 17 January 2017, at 10.

  45. 45.

    Halblieb and Earley 1998, at 2 and 3.

  46. 46.

    As envisioned, the Gorgon Stare would enable a four kilometre square picture capable of revealing objects as small as six inches. On this surveillance system’s failures, see Cockburn 2015.

  47. 47.

    See for example the 2010 special issue of the Journal of Law, Information & Science on ‘Unmanned vehicles, legal, social and ethical issues’ (including a commentary by Philip Alston), and the 2015 special issue of the International Journal of Human Rights on drone warfare.

  48. 48.

    For example, Kevin Jon Heller evaluates the legality of ‘signature strikes’ under IHL and IHRL (Heller 2013); Mahmood Ahmad addresses the legality of drone use outside the combat zone (Ahmad 2014); Rebecca Sanders considers the extent to which international laws are able to constrain state practices of targeted killing (Sanders 2014).

  49. 49.

    ‘IHL applicability in NIACs is unconstrained geographically’; see Schmitt 2014, at 19.

  50. 50.

    See the exchange between Kahn 2013 and Moyn 2013.

  51. 51.

    Schmitt 2012, at 596. Schmitt argues that the means have little bearing upon the legal implications of the acts, which could be legally analogous if carried out through other forms of weaponry. Michael Boyle claims that the policies – such as anticipatory self-defense – are more relevant than the means; see Boyle 2015.

  52. 52.

    Leander 2013 and Krasmann 2012.

  53. 53.

    Alston P , Report of the Special Rapporteur on extrajudicial, summary, or arbitrary executions, Study on targeted killings, UN Doc. A/HRC/14/24/Add.6, 28 May 2010, para 3.

  54. 54.

    Leander 2013, at 819.

  55. 55.

    Neocleous 2013, at 590.

  56. 56.

    Hardt and Negri 2000, at 12: ‘war is reduced to the status of police action’, with the U.S. at the centre.

  57. 57.

    As noted in Neocleous 2011, at 146.

  58. 58.

    Hussain 2013. Chamayou makes a similar observation, drawing upon Schmitt: ‘The verticalization of armed violence implies a tendency toward the absolute hostilization of the enemy, both politically and juridically. He is no longer positioned, in any sense of the term, on the same ground as oneself.’ Chamayou 2015, at 166.

  59. 59.

    Chamayou 2015, at 172.

  60. 60.

    The memorandum concludes that there are no constitutional barriers to taking lethal action because ‘the U.S. citizen in question has gone overseas and become part of the forces of an enemy with which the United States is engaged in an armed conflict, that person is engaged in continual planning and direction of attacks upon U.S. persons from one of the enemy’s overseas bases of operations; the U.S. government does not know when such attacks will occur; and a capture operation would be infeasible.’ See U.S. Department of Justice Office of Legal Counsel, ‘Memorandum for the Attorney General re: Applicability of Federal Criminal Laws and the Constitution to Contemplated Legal Operations Against Shaykh Anwar al-Aulaqi’, 16 July 2010, at 39.

  61. 61.

    Kevin Jon Heller asserts that there is no armed conflict in this instance because ‘the “combat” is not even close to being sufficiently protracted or intense’, and Awlaki was not connected to the non-international armed conflicts in Afghanistan or Pakistan. Heller 2011, at 183.

  62. 62.

    The Authorization for Use of Military Force (AUMF) states that ‘the President is authorized to use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons.’ 107th Congress Public Law 40, Joint Resolution, 18 September 2001.

  63. 63.

    This is highly contested in international legal scholarship. For an effort to establish principles governing a state’s right to self-defence against an imminent attack, see Bethlehem 2012.

  64. 64.

    Hendrickson 2014, at 18. Hendrickson was a major in the U.S. Air Force at the time of writing.

  65. 65.

    United States Department of Justice 2011, at 1–2.

  66. 66.

    Holder 2012.

  67. 67.

    Obama 2013.

  68. 68.

    ‘These entities are not states that ‘failed’ but rather territories where the paradigm of traditional statehood is inapplicable.’ Finucane 2012, at 35. The article’s author went on to work as an attorney-adviser for the U.S. Department of State.

  69. 69.

    This consent was documented in the most recent Report on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations’ of December 2016, at 22; available at https://www.justsecurity.org/wp-content/uploads/2016/12/framework.Report_Final.pdf, accessed 17 January 2017.

  70. 70.

    Stated in a presidential debate on 28 September 2008, ‘If Pakistan is unable or unwilling to act’ against al-Qaida leaders, ‘then we should take them out.’ https://www.youtube.com/watch?v=LqOncFQUZsw, accessed 10 January 2017. As noted by Deeks 2012, at 485.

  71. 71.

    Deeks presumes it can be inferred in the Pakistan example, but there is no evidence that it was carried out for Yemen. Deeks 2012, at 485 and 500.

  72. 72.

    Corten 2016. See also Kevin Jon Heller’s criticisms on Opinio Juris regarding the lack of supporting state practice and the scholarly (re)production of the concept: Heller KJ (2015) The Absence of Practice Supporting the “Unwilling or Unable” Test, http://opiniojuris.org/2015/02/17/unable-unwilling-test-unstoppable-scholarly-imagination, accessed 10 January 2017; and Heller KJ (2015) The Seemingly Inexorable March of “Unwilling or Unable” Through the Academy, http://opiniojuris.org/2015/03/06/the-seemingly-inexorable-march-of-unwilling-or-unable-through-the-academy, accessed 10 January 2017.

  73. 73.

    Austin 1962, at 30.

  74. 74.

    Corten traces its emergence back to the Chatham House ‘Principles of International Law on the Use of Force by States in Self Defence’ (2006) and the more recent Leiden Policy Recommendations on Counter-terrorism and International Law (2010). Corten 2016, at 778. The U.S. recently referred to ‘unwilling or unable’ as a ‘legal standard’; see Report on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations’ of December 2016, at 10.

  75. 75.

    Deeks 2012, at 503.

  76. 76.

    Carsten Stahn also identified a ‘trend’, building upon the ‘overall control’ test adopted by the ICTY Appeals Chamber in the Tadic case: ‘If it becomes evident that the host state is unable or unwilling to act, the injured may, as an ultima ratio measure, take military action to stop the persisting threat’, noting that it is doctrinally based on conceptualizing sovereignty as responsibility, and the ‘relative character of territorial integrity’. Stahn 2003, at 47.

  77. 77.

    Schmitt 2013, at 86–87.

  78. 78.

    Yves Winter has shown how the discourse of asymmetric warfare ‘tends to moralize and depoliticize contemporary conflict constellations’; further, ‘[t]he asymmetric sleight of hand is that the actors rendered most vulnerable to asymmetric warfare are the most powerful states, those with the largest militaries and most sophisticated technologies and weapons systems.’ Winter 2011, at 490 and 496.

  79. 79.

    Corten 2016, at 780; Bannelier-Christakis 2016, at 767.

  80. 80.

    Corten 2016, at 792.

  81. 81.

    Etzioni 2016, at 17.

  82. 82.

    The Obama administration claimed that acting in this instance ‘entails assessing whether the territorial state is able and willing to mitigate the threat emanating from its territory’. Report on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations’ of December 2016, at 10.

  83. 83.

    Chamayou 2015, at 136.

  84. 84.

    Nasser Hussain observed that ‘[b]ecause drones are able to hover at or above 30 thousand feet, they are mostly invisible to the people below them. But they can be heard. Many people from the tribal areas of Pakistan (FATA) describe the sound as a low-grade, perpetual buzzing, a signal that a strike could occur at any time. The locals call the drones machar, mosquitos. Because the drone can surveil the area for hours at a time, and because each round of surveillance may or may not result in a strike, the fear and anxiety among civilians is diffuse and chronic.’ Hussain 2013. See also the Stanford and NYU Law School study ‘Living Under Drones’; Cavallaro et al. 2012.

  85. 85.

    Foucault 2007.

  86. 86.

    Anderson 2006, at 19.

  87. 87.

    Ntina Tzouvala (2016) persuasively draws upon James Lorimer ’s late-nineteenth century distinction between civilized, semi-civilized and uncivilized states to argue that ‘the “unwilling or unable” doctrine replicates this hierarchy, directly adopting certain “civilization” criteria , such as the existence of a strong effective centralized state with a certain level and a certain mode of control over its territory. Mark Neocleous (2011) contends that the ‘war on terror ’ has led to the return of ‘civilization’ as a category of international power. And according to anthropologist Hugh Gusterson , drones ‘can be used only against countries that lack the technological sophistication to shoot down the slow-moving planes and whose internal affairs, conforming to Western stereotypes of “failed states”, provide a pretext for incursion that is as persuasive to liberal interventionists today as the white man’s burden was to their Victorian ancestors.’ Gusterson 2016, at 148.

  88. 88.

    Deeks 2012, at 505. Elsewhere she claims ‘[a]ssuming that most states have inherent incentives to avoid violations of their sovereignty, this might mean that a territorial state has stronger incentives to improve its ability to suppress nonstate threats by having adequate criminal laws on its books and strong, noncorrupt law enforcement and military forces’ (509–510).

  89. 89.

    UNSC Resolution 2249 on 20 November 2015. Here as well, much commentary addresses whether or not the Security Council was acting under Chapter VII powers in authorising the use of force without addressing the conception of territory the resolution presents, which casts a global landscape of ISIS activity (Sousse, Ankara, Sinai, Beirut, Paris) emanating from uncontrolled Syrian state territory to justify the use of force.

  90. 90.

    Elden 2009, at 69.

  91. 91.

    Jens Bartelsen observes that ‘sovereignty has been turned into something granted, contingent upon its responsible exercise in accordance with the norms of an imagined international community.’ Bartelson 2014, at 97.

  92. 92.

    On the implications of ‘responsibility to protect’ for territorial integrity, see Elden 2009, 151–165; more generally see Duffield 2007. On the nexus between responsibility to protect and interventionism, see Mamdani 2010.

  93. 93.

    United States Department of Justice 2011, at 2.

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  1. University of Kent, Canterbury, UK

    Sara Kendall

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  1. Sara Kendall
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  1. Ministry of Security and Justice of the Netherlands, The Hague, The Netherlands

    Martin Kuijer

  2. Faculty of Law, VU University Amsterdam, Amsterdam, The Netherlands

    Wouter Werner

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Kendall, S. (2017). Cartographies of the Present: ‘Contingent Sovereignty’ and Territorial Integrity. In: Kuijer, M., Werner, W. (eds) Netherlands Yearbook of International Law 2016. Netherlands Yearbook of International Law, vol 47. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-207-1_4

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