Sovereigns as trustees of humanity: on the accountability of states to foreign stakeholders.

Author:Benvenisti, Eyal
 
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We live in a shrinking world where interdependence between countries and communities is increasing. These changes also affect--as they should--the concept of sovereignty. In past decades the predominant conception of sovereignty was akin to owning a large estate separated from other properties by rivers or deserts. By contrast, today's reality is more analogous to owning a small apartment in one densely packed high-rise that is home to two hundred separate families. The sense of interdependency is heightened when we recognize the absence of any alternative to this shared home, of any exit from this global high-rise. The privilege of bygone days of opting out, of retreating into splendid isolation, of adopting mercantilist policies or erecting iron curtains is no longer realistically available.

In our global apartment building, several pressing questions have emerged concerning the neighbors' entitlement to a voice in the decision-making processes of their fellows--in which they increasingly have a stake: To what extent should national regulators weigh other nations' or foreign nationals' interests when they make decisions that could affect them? To what extent should legislators and government agencies involve neighboring stakeholders in their decision-making processes? To what extent should states share with strangers their scarce national resources such as land, water, or rare minerals, or sacrifice the lives of their security forces, in order to alleviate the suffering of foreigners in need and, more generally, to contribute to global welfare? A further question is whether any of these obligations are legal ones--and, if so, what consequences they do or should entail. These fundamental questions arise in many, if not most, areas reserved for national policymaking, ranging from the regulation of markets, including trade, investments, and securities, through the management of natural resources, including matters relating to biodiversity and the protection of World Heritage sites, to human rights issues, including the obligation to respond to pandemics and the rights of refugees and asylum seekers. International organizations face similar questions when they decide on matters that could affect stakeholders in countries that are not members of the particular organization in question.

These new realities play out in an intellectual, political, and legal environment still rooted in the vision of state sovereignty as the ultimate source of authority. True, in many ways sovereignty is not what it was in the nineteenth century. Most notably, the sovereign-king has been "dethroned" (1) by the people, whose will is now "the basis of the authority of government." (2) Increasingly, a sovereign's right to rule (whatever form the sovereign may take) is regarded as conditioned upon its respect for its own people, for those "committed to [its] care" (3) or found within its territorial borders; (4) international law no longer regards the relationship between the state and its citizens as a purely domestic affair. Sovereignty itself has not been "dethroned," however, and states continue to assert their freedom of action as the default rule. In most areas of international law, limitations on state sovereignty must still be grounded on the state's prior consent. While the major actors are no longer kings and princes, the sovereigns' assertion of authority is as strong as in the past because it is now typically rephrased in terms of self-determination: as the trustees of their people, they have fiduciary duties to them and only to them. Precisely because sovereignty inheres in the people, the primary responsibility of its agents is held to be that of protecting and promoting their citizens' interests rather than that of heeding others' concerns. By acknowledging general obligations toward strangers beyond their borders, national bodies might compromise their people's exclusive right to define and pursue national goals and values, and might expose them to exploitation by other peoples' free riding on their good faith contributions. Sovereigns are therefore unlikely to commit voluntarily to taking strangers' concerns and global welfare seriously into account. Their answer to the preceding set of questions is brief: we are bound to take other-regarding interests into account only when and to the extent that we explicitly and formally commit to doing so; nothing more may be assumed.

Despite nominal references to the reality of interconnectedness and shared destinies, contemporary sovereigns still obstinately retain their commitment to only their own nationals. They may agree to a few specific commitments toward others, such as obligations under human rights treaties to refugees approaching their borders (5) or to individuals situated in foreign areas under their effective control, (6) or obligations not to obstruct the export of food, and even to provide food, to countries in need. (7) But they are typically reluctant to assume other obligations, such as the obligation under trade law to allow the export of raw materials, (8) and they resist any general limitation on their discretion. Although the concepts of "sovereignty as responsibility" and "responsibility to protect" have been recognized by states, (9) most states strongly resist the expansion of such responsibilities even to cases of natural disasters. (10)

Given this history, it may seem utopian to propose reinterpreting sovereignty and the "inherent" rights of peoples to self-determination as requiring states to assume certain underlying obligations toward strangers situated beyond national boundaries and also to take foreigners' interests seriously into account even absent specific treaty obligations. Nevertheless, that is exactly what will be undertaken here. This article argues that such a reconceptualization of sovereignty is morally required and that, even if not explicitly acknowledged, this concept already manifests itself in certain doctrines of international law and in specific judicial decisions.

The solipsist vision of sovereignty as the ultimate source of authority has survived due to the perception of a perfect or almost perfect fit between the sovereign and the affected stakeholders--its citizens. (11) Such a vision made eminent sense when sovereigns ruled their discrete mansions. Because externalities were at the time relatively rare, the assumption of such a fit was regarded as the most effective way to overcome collective-action problems in the production of public goods, such as maintaining public order or ensuring food security and public health. Cross-border pollution and other interstate externalities were seen to be effectively handled at the inter-sovereign level and negotiated by emissaries and ambassadors (and, later, within international organizations). It was this perception of sovereign spheres as discrete and private--with each people entitled to self-determination--that shielded states from being required to internalize the rights and interests of noncitizens in their policymaking and that offered an ostensibly neutral conception of the state and its responsibilities that excluded "the other."

But in our contemporary global condominium, the "technology" of global governance that operates through discrete sovereign entities no longer fits. What had previously been the solution to global collective action problems has now become part of the problem of global governance. Sovereigns regulate resources that are linked in many ways and on a daily basis with resources that belong to others. Some states regularly shape the life opportunities of persons in faraway states by their daily decisions on economic development, conservation, or health regulation, whereas the foreign citizens thereby affected are unable to participate meaningfully in shaping such measures either directly or by relying on their own governments to effectively protect them.

The reverse also occurs, as citizens may find their own governments subject to capture by affluent foreigners who intervene in domestic decision making. Moreover, the fragmented global space makes it difficult for disparate sovereign states to overcome their differences and to collectively resist powerful third parties, whether other states or business enterprises. As a result, these sovereigns lose their discretionary space and are driven into submission by "divide and rule" strategies exercised by more powerful global actors. The postcolonial promise of national self-determination remains for them partly, if not largely, unfulfilled.

The private, self-contained vision of state sovereignty is also challenged by the intensifying interdependency in relation to shared resources. States rely more on, and have greater influence regarding, the availability and quality of transboundary resources such as air, water, and fisheries. (12) But from a global perspective, even "their own" resources are not solely theirs. States are not founded on separate clouds floating past each other. Rather, "[b]y carving out a territorial jurisdiction for themselves, states withdraw part of the surface of the earth from free access to outsiders." (13)

The problematic juxtaposition of pressing contemporary demands on an increasingly obsolete and inadequate nineteenth-century conception of sovereignty has led several moral and political philosophers, as well as legal scholars, to eschew statism in search of more contemporarily relevant globalist concepts and institutions--though in the process, often too quickly heralding the demise of sovereignty. These responses include the most ambitious suggestions for systemically reorganizing global institutions and even creating a world government, (14) range through cosmopolitan perspectives on redistributing global resources based on visions of global justice, (15) general "solidarity" obligations, (16) global constitutional paradigms that assign limited authority to states, (17)...

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