INTRODUCTION :: Prompted by the advent of new threats to national and human security, Viet Dinh’s article, Nationalism in the Age of Terror makes a case for the continued relevance of state sovereignty and patriotism in the twenty-first century. Counter to the recent tendency in some quarters to denounce state sovereignty as an obstacle to international legality, and patriotism as an impediment to universal justice, Professor Dinh reasserts the analytical and normative value of both of these concepts. He is, I believe, quite correct to do so.
Relevant though they are to many questions, however, sovereignty and patriotism are inherently complex and ambiguous concepts, and their invocation alone has little determinate consequence for legal and political judgments. Professor Dinh’s article speaks only in relatively general terms, both about these concepts and about his view of their application to post-September 11, 2001 global realities. It is, clearly, the start of a much more elaborate conversation.
This Commentary follows up on Professor Dinh’s article by further exploring the fundamental concepts that he invokes, in an effort to draw out more precisely what is at stake in assessments of their continued relevance. The discussion below rejects the commonplace framing of the issue as “state sovereignty versus international law,” and instead draws on the existing legal prerogatives of states to articulate a unifying account of sovereignty’s role within the international legal order. That account makes a case for the moral, as well as the practical, significance of sovereignty, with further implications for how patriotic duties relate to the demands of universalist morality.
On the account rendered below, the foundations of the international legal system reflect persistent, though bounded, disagreement within its membership as to what constitutes a just internal public order. While the boundaries of the system’s pluralism have narrowed progressively in the course of the United Nations era, accommodation of diversity in modes of internal political organization remains a durable theme of the international order. This accommodation of diversity underlies the international system’s commitment to preserve states’ territorial integrity and political independence, often at the expense of other values. Sovereignty thus operates as a set of legal limitations on the establishment and enforcement of international norms. Though frequently counterintuitive, these legal limitations are supported by substantial moral and political considerations, and they should be overridden only in a limited range of cases.
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December 2013, Vol. 65, No. 6
Adam Mossoff, The Trespass Fallacy in Patent Law
Alan White & Carolina Reid (Essay), Saving Homes? Bankruptcies and Loan Modifications in the Foreclosure Crisis
Lee Harris, CEO Retention
Jennifer Koh, Rethinking Removability
Katrina Wyman & Nicolas Williams, Migrating Boundaries