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40 Stan. J. Int'l L. 259 (2004)
The Question of Sovereignty

handle is hein.journals/stanit40 and id is 269 raw text is: The Question of Sovereignty PAUL W. KAHN* Because the concept of sovereignty is critical to both the domestic and the international orders, it has long had to bear more weight than it can sustain. Sovereignty is the point of intersection between these two systems of thought and practice. Each perspective tries to make its conception of sovereignty the vehicle through which it reorders the other. Thus, in the classical era of international law, the state's commitment to a conception of domestic sovereignty as unbounded authority led to an international legal order organized around the principles of nonintervention and consent. Today, pressure is in the opposite direction: Recognition of state interdependence is pushing toward a reconceptualization of the meaning of domestic sovereignty. Contemporary assertions of sovereignty are as likely to focus on a right to participate in transnational regimes as on a right of self-determination. ' Sovereignty has become an essentially contested concept. What had been an ontological concept is attacked today from the perspective of a global functionalism that emphasizes state interdependence in the face of common problems.2 More is at stake here than political metaphysics. Behind this contest lies the deeper question of the character and meaning of political identity. The contemporary functionalists understand politics and political institutions as means to ends that are not themselves political-for example, individual well-being or environmental preservation. Their predecessors understood politics as an end in itself.3 For the latter, politics was constitutive of identity; for the former, it is just one way of accomplishing various tasks. The contemporary dispute over sovereignty is unavoidably a dispute over the future of the political. * Robert. W. Winner Professor of Law and the Humanities and Director of the Orville H. Schell, Jr. Center for International Human Rights, Yale Law School. I See ABRAM CHAYES & ANTONIA HANDLER CHAYES, THE NEW SOVEREIGNTY: COMPLIANCE WITH INTERNATIONAL REGULATORY AGREEMENTS 27 (1995). 2 See, e.g., Charles Taylor, Cross-Purposes: The Liberal-Communitarian Debate, in LIBERALISM AND THE MORAL LIFE 159 (Nancy L. Rosenblum ed., 1989) (noting a similar distinction between an ontological perspective and an advocacy perspective in describing contemporary critiques of liberalism and arguing that ontological questions are too often confused with the advocacy of substantive moral or policy questions). 3 This is already implicit in the Aristotelian idea that man is a being meant for political association, by which Aristotle meant that only in a political community could man realize the truth of his nature. ARISTOTLE, POLITICS, BOOK I, at ch. 2, § 10 (Ernest Barker trans., Oxford University Press 1962). In classical international law, the state always had the right of self-defense because the continuation of the state's existence could not be subordinated to any other end. Cf U.N. CHARTER art. 51 (recognizing the inherent right of... self-defense.., until the Security Council has taken measures necessary to maintain international peace and security). 259 40 STAN. J. INT'L L. 259 (2004)

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