Sovereignty: The Biography of a Claim 9781487539696

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SOVEREIGNTY The Biography of a Claim

in UTP insights UTP Insights is an innovative collection of brief books offering accessible introductions to the ideas that shape our world. Each volume in the series focuses on a contemporary issue, offering a fresh perspective anchored in scholarship. Spanning a broad range of disciplines in the social sciences and humanities, the books in the UTP Insights series contribute to public discourse and debate and provide a valuable resource for instructors and students. For a list of the books published in this series, see page 177.

SOVEREIGNTY The Biography of a Claim

Peter H. Russell

UNIVERSITY OF TORONTO PRESS Toronto Buffalo London

©  University of Toronto Press 2021 Toronto Buffalo London utorontopress.com Printed in Canada ISBN 978-1-4875-0909-5 (cloth) ISBN 978-1-4875-3969-6 (PDF) ISBN 978-1-4875-3970-2 (EPUB)

Library and Archives Canada Cataloguing in Publication Title: Sovereignty : the biography of a claim / Peter H. Russell. Names: Russell, Peter H., author. Series: UTP insights. Description: Series statement: UTP insights | Includes bibliographical   references and index. Identifiers: Canadiana (print) 20200411004 | Canadiana (ebook) 20200411012   | ISBN 9781487509095 (cloth) | ISBN 9781487539696 (PDF) | ISBN   9781487539702 (EPUB) Subjects: LCSH: Sovereignty – History. Classification: LCC JC327 .R87 2021 | DDC 320.1/5—dc23

University of Toronto Press acknowledges the financial assistance to its publishing program of the Canada Council for the Arts and the Ontario Arts Council, an agency of the Government of Ontario. University of Toronto Press acknowledges the financial support of the Government of Canada through the Canada Book Fund for its publishing activities.

Contents

Acknowledgments  vii 1 Confronting the Sovereignty Claim  3 2 Emperor and Pope Fight for It  19 3 Westphalia: The State Gets It  25 4 We the People Become Sovereign  37 5 Sovereignty as an Instrument of European Imperialism  55 6 Settler Sovereignty  71 7 Federalism Takes the Sting Out of Sovereignty  85 8 Sovereignty Challenged Beyond and Within the State  99 9 Sovereign States and the UN’s Fatal Incapacities  117 Conclusion  131 Epilogue: Sovereignty and the Coronavirus Pandemic  139 Notes  147 Suggestions for Further Reading  161 Index  165

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Acknowledgments

First and foremost let me thank the Dene, whose invitation to meet with them and discuss their concerns about sovereignty began the personal odyssey that found its final destination with the writing of this book. I apologize that a full answer to your question “What is sovereignty?” has been so long in coming. But here it is. Second, let me thank my colleagues – faculty and graduate students – in the Department of Political Science at the University of Toronto for the careful consideration so many of them gave to the first draft of the book. I have benefitted greatly from your feedback and suggestions. I am also grateful for the opportunities you gave me to share my ideas about sovereignty with your undergraduates. Our department is a genuine community of scholars. Then there are two women, Brydon Gombay, a lifelong friend, and my dear wife Sue, who patiently read drafts of chapters not simply to catch typos but to improve how it reads. If there is not too much turgid academic prose in the book, and if it sings a bit, thank Brydon and Sue. I have had the good fortune, all through my career, of having one of the world’s greatest scholarly presses at my university. Once again, the University of Toronto Press has agreed to publish my book and to work with me in making it better. And once again I have had the pleasure of working with acquisition editor Dan Quinlan, whose encouragement and advice have been so helpful in bringing the book to publication. I also thank the anonymous

viii Acknowledgments

readers whom Dan recruited, and whose thoughtful comments have helped me prepare the final manuscript. Finally, I want to salute my grandchildren and their generation, which I believe may have the inclination to clean up the mess, including the pernicious use of sovereignty, that my generation is leaving behind.

SOVEREIGNTY The Biography of a Claim

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chapter one

Confronting the Sovereignty Claim

On a late spring day in 1974, I received a long-distance telephone call from Yellowknife from a gentleman who identified himself as James Washee, grand chief of the Dene Nation. Chief Washee explained that his people were developing a new approach to Canada as they prepared to deal with the threat of Canada authorizing a pipeline through their territory. They had heard that I was a “constitutional expert” and would like to test their new approach on me to see how it fitted into Canada’s constitutional system. Could I come up to Yellowknife and meet with them? I had never heard of the Dene nation, and had no idea that this four-letter word meaning “us” in Athabascan languages was pronounced “den-nay.” Not only that, but while I had been teaching political science at the University of Toronto since 1958, and had become the department’s professor for what we offered on all things constitutional, the words “Indian,” “Métis,” ” Inuit,” “Native peoples,” “Aboriginal peoples,” and “Indigenous peoples” had never crossed my lips in fifteen years of lecturing. Nor had any of the texts I drew upon to prepare my lectures in Canadian government and politics included any content on peoples indigenous to the Canadian territory. But I was intrigued by the chief’s call, so I said yes – and about twenty-four hours later found myself walking into the Mackenzie conference room in the Yellowknifer Motel in the centre of the capital of Canada’s Northwest Territories. The six Dene leaders waiting for me in the room got right down to business. The only woman in the group began the questioning.

4 Sovereignty

She said that there were two questions they would like to put to me. (It’s a hell of a long way to come to answer two questions, I thought to myself.) The first, she said, was “What is sovereignty?” and the second was “How did the Queen get it over us?” Well, the first question was easy for me – that was the kind of thing I taught. I had a nice pat answer based on the philosophical writings of Bodin and Hobbes and my understanding of European international law. But I had never thought about the second question. And what a huge question it was – not only for the Dene but for all Canadians. The Dene leaders nodded in agreement that, yes, it sure is a big question. I told them that I didn’t know the answer but was determined to find out how Canada, as they put it, got sovereignty over the Dene nation – and for that matter, any other Indigenous nation. My enquiry into sovereignty had begun. When I returned to Toronto, I scurried over to the law school to ask my colleagues learned in the law for their answer to the second question. Wow, they said, that sure is a big question but we really don’t have a clue how the Queen established sovereignty over the Dene or any other Indigenous nation. The law governing relations with Indigenous peoples was not a subject they studied or taught. Still, none of them seemed to harbour any doubts that such sovereignty had been well and truly established. Over the next few years, as I got to know the Dene better, I learned about how emissaries of the Canadian government had first entered the Dene lands and the conditions under which they negotiated Treaty Eight in 1899 as the queen’s representatives and Treaty Eleven as the king’s representatives in 1921. These treaties had about as much to do with the queen or king as they did with your great grandma or grandpa. The mission of the Canadian treaty party in 1899 was to secure a safe shortcut for Canadians on their way to the Klondike goldfields, and in 1921 to prepare access for the oil industry to the petroleum discovered at Norman Wells, a way down the Mackenzie River. These treaties, like the other numbered treaties before and between them, were designed to gain access for settler industries to resources in areas that had been Indigenous nations’ homelands for centuries and in which Native peoples were still by far

Confronting the Sovereignty Claim  5

the dominant if not the only population. In contrast to the United States, which abandoned treaty-making with Native peoples in 1871 and used warfare with Indian nations to get control of their lands, Canada, after Confederation, relied on treaties as a less expensive and less violent way of gaining access for its people to lands on its western and northern frontiers. Sovereignty is not mentioned in these treaties, nor is the queen or king referred to as sovereign. But the text of the treaties, written in Ottawa, in English, in advance of “negotiations” and not translated into the Native people’s language, contained some killer language. In return for some up-front money and small annual payments of a few dollars to every man, woman, and child, flags, medals, suits for the chiefs, sometimes fishnets and farming equipment, plus some small parcels of their former homeland to be assigned to them by the queen or king as “reserves,” the Native owners are purported “to cede, release, surrender and yield up” all rights and privileges to all of their territory. This language is in all the numbered treaties. It is what the lawyers call “boilerplate.” At the so-called treaty negotiations, the Crown’s representatives did not use those killer words at all. Instead, the Indigenous signatories (who may have lacked authorization to sign anything on behalf of their nation) were assured that they would have access to their traditional hunting grounds as long as the sun rises and the rivers flow.1 When you read the treaty texts and think about the actual treaty process, the most apt word that comes to mind in answering the Dene’s question about how the Queen got sovereignty over them is surely trickery. And that is a polite way of answering the question. Fraud is closer to what actually occurred. The First Nations had not been conquered, and while there was a strong interest in establishing a peaceful relationship and getting some tangible benefits, no Native people was so desperate that it would knowingly sign away its rights and make itself totally dependent on the largesse of the white man. Years later, when I was researching the failure of settlers to recognize Aboriginal title in Australia, I learned another word that may be as apt as trickery to describe European claims of

6 Sovereignty

sovereignty. An Indigenous friend had taken me to “Discovery Point,” the southern point of Thursday Island in the Torres Strait where you can look across to Cape York, the north-eastern tip of the Australian continent. I asked my friend why it was called “Discovery Point.” Because, he explained, this is where Captain Cook stopped after sailing up the eastern coast of what we came to call Australia. Looking across the strait to the huge land mass to the south, Cook declared that all he could see and beyond belonged to his majesty, George III. “That’s ridiculous,” I exclaimed. No, my friend replied, “It was magic. Their lawyers, dressed like magicians in black robes and wearing huge wigs, would go into court and solemnly assert British sovereignty over our country.” And the magic worked, he added, when it was backed up by a powerful army and navy.2 Concerns about sovereignty did not stop the Dene from moving ahead with their political project. On 19 July 1975, a joint General Assembly of the Indian Brotherhood of the NWT and the Métis Association of the NWT adopted the Dene Declaration, which includes the statement: We the Dene of the Northwest Territories insist on the right to be regarded by ourselves and the world as a nation.

And it concluded with the following statement of the Dene’s political objective: What we seek then is independence and self-determination within the country of Canada. That is what we mean when we call for a just land settlement for the Dene Nation.3

In 1974 the Canadian Liberal government, led by Pierre Elliott Trudeau, when faced with a complicated new problem – running a pipeline through the territory of a Native people – turned to a time-honoured Canadian tradition to find an answer, a Royal Commission of Inquiry. Thomas Berger was appointed to head it. The Trudeau Liberals at that time were in a minority government situation, and their selection of Berger, a former leader of the British

Confronting the Sovereignty Claim  7

Columbia New Democratic Party (NDP), was crucial to winning the support of the NDP in the federal House of Commons. The Mackenzie Valley Pipeline Inquiry marks a turning point in Canadian history. For the first time, an Indigenous nation would have an opportunity to address the country and the world about its interests and aspirations. The Dene took advantage of the opportunity. They prepared massive evidence about their use of their lands and waters and their long-term plans for their future. My job, along with Don Simpson, a business professor at the University of Western Ontario, was to help Dene leaders communicate their message to southern Canada by organizing meetings with media organizations and citizens’ group in Canada’s major cities. We also worked at finding national and international experts who could give evidence to Berger about the rights of Indigenous peoples. My own contribution as a Berger Inquiry witness was to give testimony about the compatibility of the Dene Declaration with the Canadian constitution.4 When Berger reported in 1977, his main recommendation was a ten-year moratorium on pipeline development in the Mackenzie Valley. This would provide time for the study of Native rights and negotiation with the Dene Nation on land and self-government issues. The Government of Canada accepted that recommendation. As things turned out, well before the ten years were up the petroleum industry had lost interest in what Berger described as perhaps “the biggest project in the history of free enterprise.” And the Canadian government, as a result, had lost interest in negotiating land and self-government issues with the Dene. Now flash forward to the last year of the twentieth century. In the summer of 1999, again I received a phone call out of the blue. This time it was from the office of Jane Stewart, the federal minister of Indian Affairs and Northern Development (DIAND) in the Chrétien Liberal government. Would I be willing to serve as “Canada’s envoy” to the Deh Cho Dene Nation in the Northwest Territories? An upturn in international oil prices had sparked a renewal of industrial interest in building a pipeline through the Mackenzie Valley. The Dene and Canada had not been at the negotiating table for many years; and the envoy’s

8 Sovereignty

job was to see if there was enough common ground to justify a return to the table. The Dene had insisted that this person be called not a facilitator or a mediator but an envoy. I was told that I was not the government’s first choice nor the Dene’s, but I was the only person acceptable to both. It was a bit like winning third prize in a beauty contest. But I said OK and accepted the assignment. For the next fourteen months I spent all the time I could spare from teaching responsibilities at the University of Toronto on the envoy’s mandate. This meant visiting all of the ten Dene settlements. Deh Cho means “big river,” and most of the Deh Cho Dene live along Deh Cho (which settlers call the Mackenzie) and its tributaries, from Fort Wrigly in the north to the edge of the town of Hay River near the Alberta border and Fort Liard on the BC border. These were not fleeting visits. Posters outside the schools and post offices announced the envoy’s visit. I spent time in the schools explaining what an envoy was and the nature of my mandate, visited Elders in their homes, met with community leaders in the Deh Cho office, and often just hung out in a coffee shop on the main street of the village. My visits to the Deh Cho villages were interspersed with visits to the Ottawa villages: the Prime Minister’s Office, Finance, Justice, Environment, Natural Resources, and Fisheries. Jane Stewart arranged these visits so that, if and when the result of my mandate came to Cabinet, ministers with a stake in the issues would be briefed, and hopefully onside. I found that the Ottawa villages were much further apart socially and ideologically than the Deh Cho villages. Each lived in its own policy silo, and none more than the natural resources part of the Department of Indian Affairs and Northern Development. The envoy’s mandate aimed not at negotiating concrete issues but at producing a statement of general principles that both the Deh Cho and Canada could support. That was my deliverable. By mid-August 2000, we had developed a list of twenty-one “common-ground” principles that had been approved at two general assemblies of the Deh Cho Dene and seemed to have enough

Confronting the Sovereignty Claim  9

support from the Ottawa villages for Jane Stewart to take to ­Cabinet. The principles included a willingness of both sides to share the territory in a way that respected the integrity of the environment, the establishment of a Deh Cho system of public government in Deh Cho territory, and most important, respected the Constitution of Canada. But this statement of twenty-one common-ground principles was prefaced by a statement about two points on which there was not agreement. One was the financing of negotiations of land and self-government issues. Even though it was the Canadian government and its industrial allies who wanted access to the Dene Territory, the federal government continued to insist that costs incurred by the Dene in conducting their side of the negotiation – paying lawyers and consultants, travelling to meetings, conducting community consultations, and the like – be deducted from any final cash payment to compensate them for past encroachments on their territory without their consent. The other was – yes, here comes the s-word – sovereignty. Canada and the Deh Cho Dene did not agree on sovereignty. When Minister Stewart asked me about this, I explained that if Canada insisted on asserting its claim to sovereignty over the Deh Cho Dene, it would be a deal-breaker. I also pointed out that “sovereignty” was not in the Constitution of Canada. The minister went ahead and put the statement of twenty-one common-ground principles to Cabinet. Despite its troublesome preface, the Government of Canada approved the statement as a basis for resuming negotiations with the Dene. On 17 April 2003, Deh Cho grand chief Michael Nadli and DIAND minister Robert Nault (Stewart’s successor) signed a Resources Development Agreement.5 Although this agreement does not provide a final settlement of all the issues, it establishes a regime of shared decision-making on resource issues that has stood up to the present day. The claim of sovereignty has not been allowed to do its pernicious work of preventing an Indigenous people from sharing its territory with Canadians in ways that take into account its interests and respect its principles.

10 Sovereignty

Sovereignty Is a Claim I should make it clear that it is that eleven-letter word “sovereignty” and its nine-letter spin-off “sovereign” that is the target of this book. Ever since human beings have lived in organized societies there have been rulers and tyrants, chiefs and big cheeses, emperors and dictators, kings and queens, claiming absolute rule. But until relatively recent times, these power claimants did not claim “sovereignty.” The essential feature of the sovereignty claim is that those who make it for themselves or for the state they represent claim to be the highest source of legitimate power for the people and territory of their political community. Let me be clear about why I call sovereignty a claim. Those who assert sovereignty are not in actual control of all that people do in the territory over which they claim to be sovereign. But it is an assertion that all who are in the sovereign’s territory or are subject to its authority are obliged to comply with the laws and commands of the sovereign’s authorized rulers, and if they do not, the sovereign’s authorities can legitimately try to stop them and punish them. That is the “it” that the Dene were referring to when they asked me how the Queen got “it” over them. Like so many people, the Dene were thinking of sovereignty as a thing that was just there and that they just had to live with. But sovereignty is not a fixed part of nature. It is a claim made by humans. The effectiveness of the claim depends on how well it is supported by coercive force, the people subject to it, and outside forces. The legitimacy of the claim – whether it is morally right to accept it – depends on the ethical judgment of people. That is why it is important to recognize that sovereignty is a claim that for ethical reasons can be rejected. It is not an incontestable fact. It connotes a relationship, not a thing. A sovereignty claim’s effectiveness has both an internal and an external dimension. The claim requires acceptance through consent or force by people living in the territory of the political unit making the claim; and externally the claim, to be effective, must

Confronting the Sovereignty Claim  11

be recognized by political forces outside the sovereign claimant. A sovereignty claim’s legitimacy also has internal and external dimensions. Peoples over whom sovereignty is claimed may not regard a claim as legitimate if it adversely affects their interests or is contrary to their own norms or laws. And peoples who have had sovereignty imposed on them by force or fraud may not be effective in resisting that imposition; that is the fate of colonized peoples. But their failure to successfully resist the dominating power does not overcome their objection to the legitimacy of that power’s sovereign claim. A sovereign claimant, to gain external acceptance of its claim, will also need to have outside powers accept the legitimacy of that claim. A state that claims sovereignty over a territory might be able to secure acceptance of the legitimacy of its claim from other states or empires even though the claim’s legitimacy is rejected and resisted internally. Indeed, those were precisely the conditions that prevailed during the long period of European imperialism. To understand my treatment of the sovereignty claim, it may help to use the matrix presented in Figure 1. I will now apply the matrix to a couple of countries. Take a country like France. Its claim to sovereignty would score positively in all four boxes. It is effective in having its sovereignty respected by other countries in the world, and by nearly all people living in its territory. The legitimacy of its claim to sovereignty is also respected by other nation states and most of the people in what it claims to be its territory. No country in the world is likely to score 100 per cent in all four dimensions. For instance, in the case of France, there have long been Corsican separatists, and if their cause gathered real momentum, it might well pose a serious internal threat to French sovereignty. Externally, some Islamic states might come to question the legitimacy of French sovereignty if the French government came down hard on Islamic terrorists, denying them fundamental human rights. This would reduce – slightly – its external legitimacy, but would not likely result in losing the respect of most other nation states. The external effectiveness of France’s sovereignty claim would not be seriously undermined.

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External

Internal

Effectiveness

Legitimacy

Figure 1. Dimensions of sovereignty

France is a relatively easy country to work across both rows of the matrix. But now consider Taiwan. Even to refer to it as a “country” or a “nation state” is to provoke the strong opposition of China. China is such a powerful state that most sovereign nation states, including those who are critical of China’s treatment of human rights, do not want to get into a conflict with it. So, in the effectiveness row, Taiwan does not score well in terms of international recognition of its sovereignty. However, it scores well on the internal dimension of effectiveness. Although the main opposition party, the KMT, favours closer ties with China than does the governing party, the DPP, it participates in Taiwan’s political process, and does not invoke China’s claim of sovereignty over Taiwan as its rallying cry. It is interesting to observe, however, that while the DPP strongly supports Taiwan’s “independence” from China, it does not use the language of sovereignty in espousing Taiwan independence. “Sovereignty” is a heavy word, so that from a symbolic perspective it is a little less provocative to stand up for “independence” than to claim sovereignty. Nonetheless, it is

Confronting the Sovereignty Claim  13

Taiwan’s sovereignty that Taiwan’s government and the majority of Taiwanese people would like the world to recognize. In the external box of the legitimacy row, we have to put a question mark in both boxes. While most of the world’s nation states do not want to rile China by recognizing Taiwan’s sovereignty, at the same time they have been silent on the legitimacy of such a claim should China abandon its one-China policy. Similarly, we can only put a question mark in the internal legitimacy box, as we do not know whether the KMT would pose a serious threat to Taiwanese sovereignty should it have a chance of gaining international recognition. Although sovereign nation states became the units of international law, my treatment of sovereignty in one important respect does not comply with international law. Let me explain. After Westphalia in 1648 (which is the subject of chapter 3), sovereignty was effectively claimed by a few European states. International law began to emerge as a means of regulating relations among sovereign states. It was after the French Revolution, when sovereignty was attached to the people of a state or its dominant nation (which is the subject of chapter 4), that sovereign nation states became the units of international law. But international law was European in origin and in its biases for most of its history. Chapter 5 recounts how European imperial states exported sovereignty to the whole world, denying it to peoples and regimes that they did not consider “civilized” and imposing their own sovereignty on territories whose inhabitants they did not consider to be “civilized.” In effect, for most of the world’s nations and peoples the Europeans’ handling of international law amounted to a denial of their right to self-government. With the founding of the United Nations in 1945, whose charter begins by affirming “a faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small,”6 international law began to decolonize. Chapter 7 tells that story of decolonization, a story that is still not complete, especially with respect to Indigenous peoples. Even today there are lingering signs of the western European gradation of human societies that made international law so pernicious. The most recently published international law textbook I could find in the law library at

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the University of Toronto, published in 2009, advises legal practitioners to resort to the “usages of civilized nations” if there is no definitive test, such as a treaty, executive, legislative act, or judicial decision determinative of an international dispute.7 In telling the story of the sovereignty claim, I focus more on its truly injurious consequences, the serious – sometimes tragic – harm it has caused many peoples. The sovereignty claim also has had a good side. In certain circumstances it has yielded benefits for peoples and nation – and continues to do so. A recent example is Kuwait, where the international community’s effective defence of Kuwait’s sovereignty saved it from losing its self-government to Saddam Hussein’s invading Iraqi army. The harmful effects of the sovereignty claim frequently flow from rulers who insist on the absoluteness and “one-ness” of governance in a sovereign state. That tendency, as I show in the next chapter, goes back to the sovereign claim’s beginning, when Christian rulers attributed sovereignty to God and claimed to be God’s sole representative on earth. When earthly rulers began to claim sovereign power, they insisted on having the same absoluteness, the same unconditional and unlimited power, that had been attributed to God. The exercise of such absolute power by ruling sovereigns had pernicious consequences for many subject to that rule. Later, when sovereignty is attributed to the people or nation, again its absoluteness has been extremely deleterious for inhabitants of the territory who do not identify as belonging to a single sovereign people. A central argument of this book is that the antidote for the dangers of the sovereign claim’s absolutism is federalism – the division of governing power in a single sovereign state. By “federalism” I do not mean any particular model of federalism. The key to systems of government that are federal in character is that they combine self-rule for the constituent units of the federal state – provinces, nations, states, lander, cantons, regions – in matters essential to the interests or identity of each unit’s people, with a central government that is responsible for matters that are important for the common interest of all the units and all of the federal state’s people. If such a system of self-rule and shared rule is to be truly federal, the two levels of government – the central government and the

Confronting the Sovereignty Claim  15

governments of the federation’s units – must each possess some important independent powers that cannot be taken away by the other level. Throughout the book, I will show how this federal ideal presents itself as an alternative to the sovereign claim’s absolutism, for the sovereign nation states of the world, and for the world itself. Like “sovereignty,” in certain contexts the word “federalism” is freighted with symbolic meaning – usually negative. The English people, for example, reject any suggestion that devolving power to the Celtic parts of the United Kingdom (Scotland, Northern Ireland, and Wales) is moving it towards being federal. In that context it connotes much too great a threat to the United Kingdom’s unity. However, when it comes to the European Union, the idea that it is headed towards being a federation is anathema to English leaders because it connotes too much power for the EU’s central government. These symbolic effects in the conversation between sovereignty and federalism should not get in the way of appreciating how states can retain their coherence and their sovereignty while enjoying the liberty that results from combining local self-rule and central shared rule.

The Sovereignty Claim’s Bio, Briefly Outlined Sovereignty is a distinctly European idea and political instrument. The word’s etymology is murky. The earliest use of it cited in the Oxford English Dictionary is in the fourteenth century; however, it is clear that it was used in Frankish Europe much earlier than that. Christian thinkers such as Hincmar, the archbishop of Reims, referred to the sovereignty of God as the basis for setting moral limits on the powers of earthly rulers.8 The Christian insistence on God’s sovereignty, Larry Siedendorp argues, is a departure from classical thinking in that it makes the individual the sole subject of God’s rule, denying the inherent authority of any social group or class that might come between God and the individual.9 No one has found the word “sovereignty” in a classic Latin text, although it might well have been used in medieval Latin. F.H. Hinsley in his classic work on sovereignty writes about the “Roman

16 Sovereignty

idea of sovereignty.”10 But it is the substance of the political conditions that he associates with “the sovereign state” – absolute rule over a territory – not the word itself that he has in mind. Indeed, there were lots of powerful rulers outside of Europe who exercised that kind of power in ancient times. But they did not rely on a claim of sovereignty to justify their rule. My biography of the concept does not take the form of a series of definitions. Instead it is an action story of how the claim of sovereignty has been used as a speech act. The story begins in the next chapter in medieval Europe, where “sovereign” and “sovereignty” came to be used by a ruler, a political authority, who claimed he ought to be obeyed. As Hinsley points out, political authority in medieval Europe was highly segmented. At first there were many earthly sovereigns. Fathers claimed sovereignty over their families; princes and monarchs claimed it over their subjects; barons and other land magnates claimed it over their vassals and serfs. Sometimes “seigneur” was used as a synonym for “sovereign.” Charlemagne, the great Frankish ruler who accepted his crown from Pope Leo III on Christmas Day, 800 AD, began to consolidate his rule and, as God’s sole representative on earth, claimed an authority higher than any other earthly ruler.11 This brought the emperor into conflict with the pope, who also claimed to be God’s vicar on earth. The next chapter focuses on the destructive consequences of the collision between these two claimants to a share of God’s sovereignty that came to a head at Cannosa in northern Italy near the end of the eleventh century. Chapter 3 marks the decisive turning point in sovereignty’s biography half a millennium later, when the state replaced God as the holder of sovereignty. In 1648 a slew of European political leaders met at Westphalia, a northern Germanic territory, to make peace. Christian Europe had become deeply divided. The Protestant Reformation set Europeans to warring over religious matters. Mutual recognition of the sovereignty of the state, whether Catholic or Protestant, proved to be the key to peace. The sovereign state, claiming a monopoly of legitimate authority over a territory and the people living in that territory, became for western Europeans

Confronting the Sovereignty Claim  17

the unit regulating relations among states that recognized one another’s sovereignty. The leading theorists of the sovereign state, like Bodin and Hobbes, were indifferent to the form of government in the sovereign state. At first most European states were governed by monarchs or princes. But the rising tide of nationalism and democracy began to challenge monarchical rule. In chapter 4 we see how the French revolutionaries insisted that the nation is sovereign – and the nation meant the people. After this, popular sovereignty became the dominant theory among European peoples. Of course the people no more rule than did God, but those who do rule the sovereign state claim to have a mandate from the people. The people at this point in the story have replaced God as the source of political legitimacy. Chapter 5 deals with the culmination of the European part of the sovereignty story, when rulers of sovereign European states competed for global power and imposed their sovereignty on nonEuropean peoples. This imposition of sovereignty was supported by Europeans’ belief that they were the only civilized peoples at the top of a racial hierarchy of the world’s peoples. It is in this long period of European imperialism, which is not yet over, that we see sovereignty’s most harmful consequences. In chapters 6 and 7 I turn to the pushback against the claim of sovereignty. First, in a chapter on federalism, I show how Canada came to lead the world in dividing sovereignty and, in effect, blunting the pernicious absolutism of the claim. Many who savour the sovereign claim, as did Bodin and Hobbes, believe that the state must have a unitary sovereign and will resist this part of my argument. I hope they will consider the possibility that the exercise of sovereignty within a sovereign state can be divided. The penultimate chapter provides an overview of the challenges to sovereignty that have been gathering force in the late twentieth and the twenty-first century. Some are challenges to sovereign states’ monopoly of governmental power arising from supranational organizations like the United Nations, the World Bank, the European Union, and the World Trade Organization. Others are generated by transnational business corporations and Internet

18 Sovereignty

giants, fragmenting power outside the state in a world in which international relations are giving way to global affairs. Other challenges arise from peoples and nations within sovereign states challenging the imposition of sovereignty over them, and evaluating the rights of citizens by the norms of universal human rights. In the final part of this chapter I examine the capacity of sovereign states to deal with the three great existential threats to our planet as a liveable home for homo sapiens and all living things: nuclear weapons, climate warming, and human migration. The concluding chapter considers the prospects not of eliminating sovereignty from the world’s political lexicon but of taming the beast and reducing its sting. “Sovereignty” is too attractive a term to be given up by power-seekers like the Trumps, Putins, and Xis of this world. And it is not only these political autocrats who are attracted to the claim. Those who have been clobbered by sovereign claimants, such as Indigenous nations, now claim sovereignty, understandably, for their own societies. But as we look ahead, the need to counter a unitary state sovereignty is evident. Reconciliation with Indigenous peoples is impossible so long as a state claims sovereignty over them. The sovereignty of deeply pluralistic states must be shared if its negative features are to be overcome. Moreover, the great challenges that face our species and our planet can be most effectively addressed by a global political order that draws on the benefits of sovereignty in a federal structure of world government. In an epilogue added after I had finished writing this book, I add some thoughts on how the sovereignty claim has performed in the context of the COVID-19 pandemic.

chapter two

Emperor and Pope Fight for It

The European winter of 1076–77 was extremely severe: not a time for emperors to be out in the cold. And yet in December of that harsh winter, Henry IV, head of the Holy Roman Empire, was travelling southward through an Alpine pass with his wife Bertha and their little son. The emperor was on his way to meet Pope Gregory VII in Mathilde of Tuscany’s castle at the top of Mount Canossa in what is now northern Italy. Henry was coming as a penitent seeking the pope’s forgiveness in a quarrel they were having about sovereignty. At the beginning of 1076, Henry was riding high. He had inherited his title at the age of six on the death of his powerful father, Henry III, in 1056. During his minority he had been managed by quarrelling nobles and prelates, but by 1072 his reign as emperor had really begun. It did not take long for this tall, handsome, but headstrong man to begin consolidating his rule. The key was securing the allegiance of the Saxon nobility who were aligned with bishops loyal to the pope. In January 1076, Henry summoned a council at Worms, in Swabia, his stronghold in the Germanic south. The council denounced the pope and the bishops who supported him. Henry addressed a sharp missive to the pope, accusing him of usurping his authority: “Thou has attacked me, a consecrated king, who cannot be judged but by God himself.”1 Hildebrand of Sovana was born into humble circumstances in Tuscany (one biographer says his father was a blacksmith). But with the help of an uncle who was the abbot of a monastery, he scrambled up the greasy pole of Vatican politics and became Pope

20 Sovereignty

Gregory VII in 1073. Physically he was the very opposite of Henry – short, fat, and hunch-backed. Like Henry he was politically ambitious and strongly committed to cleansing the Roman Church of corruption. In February 1075, Gregory held a synod in Rome that attacked various corrupt practices, including lay investitures by which secular princes, including the Holy Roman Emperor, established bishoprics and abbeys by granting holy symbols. Gregory’s synod declared that any ruler, including the emperor, who made such an investiture would be excommunicated. The pope’s edict was like a declaration of war to Henry and provoked his attack on Gregory at the Worms conclave. Gregory quickly fired back. In February 1076 he held a synod at the Vatican, attended by many French and Italian bishops. The clerk from Parma who handed Henry’s letter to the pope was almost killed when its contents were divulged. Henry was now formally excommunicated, and “War was thus declared between Pope and king.”2 Henry’s fortunes changed when the majority of Germanic bishops sided with the pope. Nobles aligned with bishops in Saxony drove Henry’s garrisons out of their territory. Gregory VII’s campaign against corruption in the church was winning the day. So Henry, reading the writing on the wall, decided that he had no choice but to seek the pope’s forgiveness. In the eleventh century, Europe was still feeling the effects of Charlemagne, the Frankish leader who did so much to unify Christian Europe in the eighth and ninth centuries. In 800, Charlemagne was crowned king of the Franks by Pope Louis III at St. Peters in Rome. A few years later, drawing on the continuing influence of classical Rome, he was being referred to as emperor. “The revival of the concept of imperium as a conception of sovereignty has been traced to the twelfth century recovery of Roman Law.”3 The appellation of “holy” did not come for another few centuries, but in effect, Charlemagne was the first Holy Roman Emperor. Charlemagne’s authority came from his connection to the church and the blessing of the pope. It was that authority combined with his prowess as a military leader that enabled Charlemagne to unify European Christendom more than had ever been done before.

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At this time neither the pope nor the emperor claimed sovereignty for themselves. That exalted power, that supreme power, was attributed only to God. Christian rhetoric in medieval times was full of God’s role as a ruler of the universe.4 The attribution of sovereignty – the use of the actual word – to God appears not to occur until later in the ninth century when the bishop of Reims, writing to the pope, refers to the Holy Church and its leaders “under Christ its sovereign.”5 Now flash forward a couple of centuries to the struggle between Henry and Gregory. While neither was making the sovereignty claim for himself, each was claiming to be God’s vicar on earth. That well-known passage in the Bible where Jesus, asked whether Jews ought to pay taxes to the Romans, answers, “Render to Caesar what is Caesar’s and to God what is God’s” (Mark 12:17), was of no help in settling these competing claims. Why? Because unlike Caesar, the Holy Roman Emperor was not much of a ruler. In the segmented politics of feudal Europe, he didn’t levy taxes, or legislate, or command a bureaucracy. The church and its properties were where power and wealth were located. Deprive the emperor of his direct connection to God and you deprive him of his power. There was no sharp line between the sacred and the secular: God’s sovereignty was indivisible, as was the slice of it that belonged to his authorized representative on earth. The perniciousness of the sovereignty claim was showing itself, for the first time, in the war between emperor and pope. In January 1077, Henry had crossed the Alps and reached Canossa, just south of Reggio on the northern edge of the Lombard plain. On 21 January, he left his wife and child at Reggio and trudged up the steep, snow-clad hill to the castle Mathilde of Tuscany had built on the top of Mount Canossa. Mathilde was in residence, and so was the pope. In case you are thinking that some hanky-panky was going on up there, let me assure you how unlikely that would have been. As a young girl Mathilde had been betrothed to Godfrey of Lorraine (another man hunched of back) in a marriage arranged by her Tuscan noble family. She had shown her independence by leaving Godfrey and returning to Italy in 1071. By 1077, she was a widow, heir to her family’s extensive

22 Sovereignty

Italian lands, and one of the most powerful political leaders in Europe. Armed forces loyal to Mathilde protected Pope Gregory when he came north to meet with Henry. Inviting him to her fortress at the top of Canossa would ensure the pope’s safety in his encounter with the emperor. The castle on Canossa was protected by inner and outer walls. When Henry reached the lower outer wall, he met Mathilde and pleaded with her to persuade the pope to receive him. But Gregory refused. For three days Henry waited in the snow – in bare feet (a detail all accounts include) – fasting in the garb of a penitent. Finally on the fourth day, when Gregory was convinced that the emperor had humiliated himself enough, he allowed him to enter the castle. Henry threw himself at the pope’s feet, crying “Holy father, spare me.” Gregory absolved Henry of his sins but on condition that he was to obey the pope in all things relating to the church.6 Historians tell us that Canossa, though a memorable event, settled nothing. Henry soon reverted to making investitures. The pope once again excommunicated him and supported a rival claimant to the emperor’s title, while Henry connived with antipapal nobles to elect an antipope. When we think about Canossa today, we should see it as the first dramatic demonstration of the disturbing consequences that can flow from making the sovereignty claim. Though neither Henry nor Gregory was claiming sovereignty for themselves, they were both claiming to be the one and only earthly ruler authorized by God, the supreme power and sovereign of the world. With that authorization they could be superior to any other ruler on earth and could tolerate no division of authority within their realm. And that is just too much power to claim. Fighting over sovereignty raises the stakes in politics too high. At this stage in European history, sovereignty was not a political theory. It was a Christian adaptation of a key idea in ancient Greek thought that the universe was structured hierarchically in a Great Chain of Being.7 As Europeans recovered the works of antiquity, it was natural for them to put the Christian God at the top of that hierarchy. It was only when earthly political leaders claimed that their authority came from God that the dangerous consequences of the sovereignty claim became evident.

Emperor and Pope Fight for It  23

In the feudal era, political rule was so fragmented that there were no political entities in Europe that could be referred to as states. We encounter much more the negative consequences of the sovereignty claim as political power becomes coherent enough in Europe to form states that levy taxes, make laws, raise armies and navies – and claim sovereignty. It is to that development – the state becoming sovereign – that I turn in the next chapter.

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chapter three

Westphalia: The State Gets It

In 1644, the people of Westphalia watched a flood of fancily dressed bigwigs speaking many tongues arrive in the cities of their Rhineland territory north of Cologne. All they knew was that their Germanic province had been chosen as the site for making peace on a war-torn continent. Little did they know that their land would give its name to a worldwide political system whose actors would be sovereign nation states. The international system of nation states, which we tend to take for granted today, was not created at Westphalia, but the treaties and understandings reached there through four years of diplomacy and treaty-making turned out to be the key turning point in the emergence of that system to which Westpahlia gave its name and one that would dominate relations among human societies on our planet right up to the present day. The Westphalian meetings also mark a critical transition in European thinking about sovereignty: the locus of that supreme power was passing from God to the state. The enormous cultural change taking place as Europe emerged from the Middle Ages propelled these political developments. By the 1600s, the recovery of the classical culture of Greece and Rome and the rebirth of interest in human creativity referred to as the Renaissance were well advanced, and what we call the Enlightenment, the age when reason and free enquiry challenged religious faith as the source of knowledge, was well underway. Seventeenth-century Europe was still Christian in the sense that

26 Sovereignty

Christian belief was the default position of Europeans, including their thinkers, artists, and political leaders, but the seeds of a secular age had been planted,1 and European Christendom was divided as never before. The Protestant Reformation that began in 1517 when Martin Luther published his Ninety-Five Theses unleashed a period of intense conflict among Christians in western Europe. The western part of the continent was racked with war for the better part of a century. Historians estimate that eight million people lost their lives in this conflict.2 The fighting reached its most virulent stage in the so-called Thirty Years War that broke out in 1618 and ended at Westphalia in 1648. The war’s dominant contestants were the Habsburg Empire and Spain, determined to keep the territory they controlled solidly Roman Catholic, and predominantly Protestant northern states, like Denmark and Sweden, and also the Dutch Republic, which was fighting for its independence from Spain. This Christian conflict was not unlike the Shiite/Sunni conflict currently destabilizing the Islamic world. France, glad to encourage challenges to its great power rivals, the Habsburg Empire and Spain, supported the antipapist side. Westphalia had been chosen as the site for peace-keeping because it was regarded as a neutral demilitarized territory. Religious alignment in the territory was evident, however, in delegates’ choice of where they would reside. The Habsburgs, Spaniards, and Vatican representatives chose Roman Catholic Münster, while the Swedes, Danes, and Dutch opted for Osnabruck, a city that welcomed Protestants. It was in these two cities that most of the negotiating took place. Though both the pope and the Holy Roman Emperor were represented in the Westphalian meetings, neither attended in person. Their absence reflected the profound change in European governance that had taken place since Canossa. Pope and emperor were no longer important political players. As Europe emerged from the highly segmented politics of the Middle Ages, both had been displaced by regional monarchies and emergent republics – secular polities centralizing power over their territories with enough coherence to be called states and make the claim to sovereignty.

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It was not just the great powers who were represented at Westphalia. Altogether, 109 delegations took part in the negotiations. Small principalities; peoples (potential nations) like the Poles, Russians, and Swiss within the Habsburg Empire; and potential city states like Brandenburg all sent delegations. When you consider that the upper-class diplomats and lawyers who led these delegations brought with them a phalanx of servants, there must have been at least a thousand visitors to the Westphalian towns and cities. For the Westphalians, not yet recovered from the devastation of war, housing, feeding, and watering this horde of visitors in the style to which they were accustomed was a burdensome challenge. Perhaps the peace congress was a boon to the local economy, but the Westphalians must have heaved a sigh of relief when the last carriage of diplomats left their land. The Westphalian negotiations did result in some successful treaty-making. The signings that ended the congress in 1648 involved a number of separate agreements. One, the Peace of Münster, between the Netherlands and Spain, recognized Dutch independence. In another, the Holy Roman Empire granted the Swiss their independence. Others settled territorial disputes – for instance, France got Alsace-Lorraine. The Westphalian agreements also dealt with important issues of principle; signatories confirmed their support for the principle set down in the 1585 Peace of Augsburg, that each principality has the right to determine its official religion. A limited but important step towards religious freedom was taken in recognizing the right of Christians to practice their own faith even though they might be living in principalities where their religion was not the established church – but only so long as they did it in private and at prescribed hours. The Westphalian treaty-makers did not debate or define sovereignty. Anna Jurkevics points out that the word is not to be found in any of the Westphalian treaties.3 “Sovereignty,” as we have seen, had crept into the political vocabulary of western Europeans at the high tide of Christendom. In less God-fearing times, leaders, lawyers, and diplomats had no qualms about attributing sovereignty to their earthly realms. Making that claim – a claim not to be subject to any other earthly power – was for some simply irresistible,

28 Sovereignty

but not for all. It certainly was not a claim with which the emperor of the Holy Roman Empire or its constituent parts would have been comfortable, given the fragmentation of political power in that empire. Hendrik Spruyt shows that at the time of Westphalia it was by no means inevitable that the sovereign state would emerge as the standard unit of politics in all of Europe.4 The sovereign state had its competitors – the foundation of federal possibilities that lay ahead. Spruyt argues that the strength of emergent cities would be the key to whether a monarch could consolidate his claim to the exclusive right to rule in his territory. In France, where cities were not as strong as elsewhere in Europe, the monarch could induce them to support his rule rather than align with rival noble claimants. In northern and eastern Europe, where cities pooled their strength in the Hanseatic League, and in Italy, where city states flourished in the absence of strong dynastic rulers and the presence of a papal ruler, the consolidation of power by a monarch who could claim sovereignty did not happen until a long time after Westphalia. Westphalia marked the beginning of a political system in which sovereign states will become the norm, but nobody knew that at the time.

Bodin and Hobbes At this stage in the sovereignty story, it was political theorists who led the way in spelling out what sovereignty entailed and the reason for believing in its necessity. Two political philosophers stand out as the most influential theorists of sovereignty: Jean Bodin and Thomas Hobbes. Jean Bodin’s Six Books of the Commonwealth was written in 1576, well before the Westphalia peace congress, but his thinking captures assumptions shared by leading statesmen of that era. Bodin, born in Angers, France, in 1529 or 1530, had a monkish education, becoming familiar with Aristotle and Plato as well as with the writings of leading Catholic intellectuals. In his late teens, he left the convent to study law. In 1571 his reputation as a scholar won

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him a place in the household of the duc d’Alençon, the brother of King Francis II. Working from this platform gave his writings close to an official status.5 Six Books of the Commonwealth was nothing less than an attempt to write a universal theory of government and politics. As a child of the Renaissance, Bodin believed that his comparative methodology, based as it was on his study of history and philosophy, including classical Greece and Rome, enabled him to derive principles valid for all times and all places. In claiming universal validity for his political insights, Bodin was typical of European intellectuals in not being in the least troubled by his complete lack of knowledge of the world beyond Europe and the Mediterranean. “Sovereignty is that absolute and perpetual power vested in a commonwealth,” writes Bodin at the beginning of chapter 8.6 He goes on to explain what he means by “absolute.” The distinguishing mark of the sovereign is that “he cannot in any way be subject to the command of another.”7 Since law is the command of he who is vested with sovereign power, this means that the sovereign is the sole law-maker. The “people or magnates” of a commonwealth vested sovereignty in a person of their choice with power “to dispose of their property and persons, to govern the state as he sees fit,” and when they did this they must have done so unconditionally. If it were otherwise, and the sovereign was legally bound by the conditions attached to his selection, then the ruler would not be absolute and could not exercise sovereign power. Note how Bodin conflates the sovereignty that is vested in a commonwealth with the sovereignty of the commonwealth’s ruler. His political imagination does not have room for a government within a sovereign state being subject to constitutional limits. That will come later with the writings of John Locke at the end of the seventeenth century. For Bodin there can be no earthly enforced limits on a sovereign’s rule. That is why the sovereign’s right to rule must be perpetual: a term limit would imply that some other power could enforce the limit, and then the sovereign would not be absolute. Reflecting his classical education, Bodin acknowledges that the power to govern in a sovereign state can be exercised, as Aristotle taught, by the one, the few, or the many. But in

30 Sovereignty

all three, he insists, the ruler must be absolute. Thus, in a democracy “the people, rulers and ruled, form a single body and so cannot bind themselves by their own laws.”8 Though he concedes the possibility of sovereign states that have aristocratic or democratic governments, he clearly sees monarchy as the norm. His sovereign is always a singular male. Bodin insists that his sovereign must be absolute in the sense of not being subject to laws made by any other earthly law-maker. But that did not mean that the sovereign was exempt from all law. “All the princes of the earth are subject to the laws of God and of nature, and even to certain human laws common to all nations.”9 Subjection to the laws of God and to what Catholic theologians called natural law at least set moral limits to the sovereign’s rule. Later on, as the concept of state sovereignty hardens and belief in the moral imperatives of Christianity wanes, claimants of state sovereignty will insist on the state’s moral autonomy. Concern about that development is central to French political philosopher Bertrand de Jouvenal’s modern critique of sovereignty. “It is the very principle of arbitrariness that the goodness of an act is only a matter of conforming with the sovereign will,” writes de Jouvenal.10 When the rulers of states and the people who support them recognize no standards or principles beyond their own sovereign will, we reach the apex of sovereignty’s danger to human freedom. Bodin’s alignment with a royal household undoubtedly sensitized him to the social and political conflict engendered by the religious fanaticism of his times. But he does not make the need for maintaining order his rationale for sovereignty. The absolutism of the sovereign, in his view, is the requirement of a wellordered, harmonious community in which people can live well. That “truth” he derives from natural law – his understanding of how God intends humans to live. Almost as important as the sovereignty of the ruler is the sovereignty of the father over the family, the principal constituent of the state. “In all systems of law,” claims Bodin, “the husband is regarded as the master of his wife’s actions, and entitled to the usufruct of any property she may have.”11 Families, with their dominant, all-powerful fathers, are the little sovereign units within Bodin’s sovereign, well-ordered commonwealth.

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Bodin’s political theory, saturated though it was with the biases of his time, was also prophetic. At the time he wrote, no state was ordered as Bodin thought commonwealths should be. But his writing was very influential. The Six Books were translated into German, Italian, and Spanish and became a recipe book for aspiring rulers.12 France led the way. The Estates General that gave the aristocracy, the church, and commoners some voice in government, after meeting in 1614, did not meet again until 1789. Under a sovereign king, there was no room for legitimate political pluralism. In Bodin’s theory of sovereignty, legitimate rule and law-making must be one and indivisible. That is why Bodin’s theory of sovereignty was a bad fit for England, whose sovereign parliament would come (after a civil war) to include the Crown, the lords, and the commons, none of which could make law independently of the others. Thomas Hobbes, the English philosopher, who published his theory of sovereignty in the middle of the seventeenth century, took Bodin’s theory to its logical conclusion. Bodin based his theory on a reading of history. He believed that at some point in history the sovereign had been granted sovereignty by the people. But he also held that the conditions the people may have attached to that grant of authority could have no legal force because if they did the sovereign would not really be sovereign, would not be all-powerful. Hobbes’s theory of sovereignty was based entirely on deductive reasoning. He argued that because men are naturally aggressive, self-seeking, and distrustful, there could be no covenant between subjects and sovereign without there being a sovereign authority in place to hold the people to their covenants with one another, and to their promise to obey the sovereign. Covenants without the sword, wrote Hobbes, are “but empty words.”13 For Hobbes, sovereignty was the product of human rationality. Human beings (at least those in civilized societies) were blessed with enough intelligence to understand the consequences of their selfish propensities. “Without a common power to keep them all in awe, they are in a condition which is called Warre; and such a warre, as is of every man, against every man.”14 In such a state of constant war, life would, in Hobbes’s famous phrase,

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be “nasty, brutish, and short.” So rational men, for the purpose of self-preservation, agree to give up their political freedom and accept the obligation to obey the commands of the sovereign. Though Hobbes doubts that such a war-infested state of nature ever existed in much of the world, he is sure that there were places where they were currently living that way: “For the savage people in many places of America, except the government of small Families, the concord whereof dependeth on natural lust, have no government at all.”15 According to Hobbes, men submit to sovereignty in two different circumstances. They may “agree among themselves to submit to some Man, or Assembly of Men,” or men might submit themselves and their children to a sovereign strong enough to destroy them if they refuse to submit. The latter, which he refers to as “a Commonwealth by Acquisition,” will be readily recognized by Indigenous peoples and others who have been subjected to the brute force of a state’s claim to sovereignty over them. The former, “Sovereignty by Institution,” Hobbes assumed is how England got its sovereignty. In The Elements of Law, written earlier than Leviathan, Hobbes posits that democracy must have been the first form of government when the multitude of individuals assembled to agree on a ruler. If they agreed upon a monarchical ruler but reserved the right to reassemble later and call the monarch to account, then they would have continued as a democracy with sovereignty vested in the assembly’s majority. But he assumes that did not happen in instituting the rule of England’s monarch, who therefore rules with absolute authority.16 Hobbes refers to the sovereign authority, who makes civilized, peaceful society possible, as “that great Leviathan” (hence his title).17 He took the word from the Bible where, in Psalm 104, Leviathan is identified as the monster of the deep. And what a monster Hobbes creates with his sovereign power! Chapter 18 of Leviathan spells out the sovereign’s powers. Only the sovereign has rights; the sovereign’s subjects do not even have a collective right of resistance, although an individual subject has a natural right to disobey providing that his action poses no danger to the civil peace maintained by the sovereign.18 That right is simply based on the human

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being’s fundamental desire for survival. Hobbes admits that the sovereign may harm his subjects, and that would be committing iniquity – but not injustice. Only the sovereign can determine what is just and unjust. While Hobbes always refers to the sovereign in the masculine singular, he acknowledges, theoretically, that sovereignty could be vested in a single assembly of men. But he shows no interest in this type of government, except to make it clear that a parliament based on the Crown co-operating with different sections of the population, lords and commoners, could not be a single assembly exercising sovereignty. Such a parliament would be far too divided for that. Hobbes was a thorough-going royal absolutist. Hobbes was also a most fearful man. In the frontispiece of Leviathan’s first edition he informed his readers that his mother, on giving birth to him as the Spanish Armada approached England’s shores in 1588, brought forth twins – himself and fear. He published Leviathan in 1651 in the wake of a brutal civil war in England, which no doubt shaped his cynical view of human nature and his elegant but ludicrous account of human reason. The political conclusions he drew from these false assumptions about human nature were truly monstrous. Nonetheless, Hobbes’s theory of sovereignty has been very influential right up to the present day – in particular, through its emphasis on the concentration of power in one law-maker. There is no room in his theory for legal or political pluralism, or for constitutional government. That is the most pernicious implication of the Hobbesian theory of sovereignty.

The Sovereign State and Its Competitors It is crucial to understand that those who assert sovereignty – including a sovereignty as illiberal as Hobbes’s – are making a claim, not describing reality. In reality, on the ground, where real politics takes place, there was plenty of pushback against Hobbes’s theory, even in his own day. In his own country, political forces resisting royal absolutism eventually triumphed in the Glorious

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Revolution of 1688, which ensured that England and later Britain would have constitutional government, with power in a sovereign law-making parliament shared among the monarch, the aristocracy, and representatives of commoners. Nevertheless, in the 1600s, Hobbes’s century, the English philosopher’s theory of sovereignty, while not totally winning the day in England or other parts of Europe, had a lot going for it. The seventeenth century witnessed a remarkable consolidation of power in the government of a number of states. This consolidation meant achieving the key requirement of both Bodin’s and Hobbes’s theories of sovereignty: monopolization of all legitimate law-making power in one central government, removing any base for legitimate power between the state and the individual. There was an egalitarian aspect of this development. As Larry Siedentop points out, for people released from obligations to feudal lords, “equal subjection” to a sovereign was perceived not as a loss but as a gain.”19 The two chief signs of “perfecting” sovereignty to this degree were the sovereign state’s inclination and capacity to levy and collect taxes and to make law. This kind of state-building was achieved in Austria, Prussia, Denmark, France, Holland, Russia, Spain, Sweden, and in England, whose imperialism over its closest neighbours was turning it into the British “nation.” By the end of the 1600s, the political leaders of all these countries considered that they governed sovereign states that claimed a monopoly of legitimate government authority over their territory and its residents. Their sovereignty claims were effectively supported by bureaucratic and military strength. For Bernard de Jouvenal, this makes the European seventeenth century more revolutionary than the eighteenth century. The sovereign states created in the 1600s provided the structures that the revolutionaries of the late 1700s aimed to take over. Effective as the rulers of emerging sovereign states were in establishing a monopoly of governing power, many sources of resistance to their claim of sovereignty remained and continued to gather strength – especially in states governed by absolutist, Hobbesian monarchs. Nothing provoked resistance more than the monarch of a sovereign state attempting to levy taxes without the

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consent of the land-owning nobility to whom previously sovereigns had to go begging for support. Imposing taxes in this way provoked armed uprisings in Normandy against the French king and in Catalonia and Portugal against the Spanish king. Though the Normans and Catalonians were put down by force, Portugal’s uprising led to its breaking away from the Spanish monarchy.20 In England, Charles I’s efforts to exact money from his subjects without the consent of parliament provoked a civil war and ultimately, by the end of the seventeenth century, the securing of constitutional monarchy. Constitutional government, in which law-making power is shared among different sections of the population and is limited by the obligation to comply with well-established principles, is incompatible with the theory of sovereignty propounded by Bodin and Hobbes. The landed aristocracy was by no means the only source of resistance to the absolutist claims of sovereign states. An urbanbased bourgeoisie that sovereign states increasingly relied on for generating the wealth required to maintain the infrastructure of government, and the armies and navies needed for their imperial ventures, was insisting on a say in affairs of state. Protestant minorities in Catholic countries and Catholic minorities in Protestant countries, like Britain, were far from content with the limited measure of toleration granted to them at Westphalia. Most important, in the long run, were national groups whose historical sense of national identity long preceded the claims of the new sovereign states to nationhood. These sources of political resistance would not let sovereign states get away with a key point that both Bodin and Hobbes had fudged. Both philosophers had conflated the sovereignty of the state with the sovereignty of a princely ruler. They acknowledged the theoretical possibility of governing power being exercised by an assembly but were not interested in considering how sovereignty might be exercised in such a state. For them, monarchy was not just the default form of government in a sovereign state but the only kind of government worth thinking about. And because the monarch embodied the state, he was as absolute as sovereignty in their view has to be. The forces challenging royal absolutism

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would not submit to that kind of sovereignty and would insist that sovereignty be lodged somewhere else, somewhere that included them, and the natural alternative they would turn to would be the “people” or the “nation.” That is where the sovereignty story moves to next – the response to the popular political movements of democracy and nationalism building up in Europe, climaxing in the revolution in France that broke out in 1789.

chapter four

We the People Become Sovereign

On 5 May 1789, thousands of people flocked to Versailles to watch the performance of a national ceremony that France had last seen in 1614 – the king’s summoning of an Estates-General. Louis XVI, Queen Marie Antoinette, their family, and his ministers led a procession of the three estates to an opening day mass in the Church of Saint Louis. The clergy in their cassocks and violet robes occupied first place, followed by the nobility in black cloaks with gold facings, wearing hats with white plumes. The third estate of commoners, in modest black cloaks, Muslim cravats, but no feathers in their hats, took up the rear. The weather was fine, the pomp and circumstance lavish, and the music pleasing to the king’s ear. The atmosphere was that of a public festival. If anyone with foreknowledge had pointed out that this happy event would lead quickly to the French Revolution, they would have been considered ridiculous. But that is exactly what this opening of the Estates-General was – the beginning of the French Revolution. It was the need for money that prompted Louis XVI to summon the Estates-General in 1789. An assembly of notables had made that suggestion two years earlier. As one historian has put it, at the time of the Revolution France was an example of “a rich country with an impoverished government.”1 On paper Louis XVI was sovereign, but it had long been clear that the landed aristocracy and burgeoning urban bourgeoisie were centres of power that would not continue to cough up money to the monarch without a measure of accountability.

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The Estates-General could not get down to business until a crucial procedural point was decided: how to count the votes. The king expected votes to be taken by each estate voting separately, so that the first two estates could prevail over the third. But leaders among the commoners had other ideas: there should be just one vote, one counting of heads – and since the Third Estate had 500 deputies, the nobility 188, and the clergy 247, this would give the commoners the edge. And why should that be? Well, because the Third Estate represented the nation. That was the argument made in a pamphlet written by Bernard Sieyès, a leading intellectual of the day, and reflected the practice in provincial assemblies, where commoners had at least double the number of places of the other estates.2 At this point King Louis could have opted for the model Great Britain settled into after its Glorious Revolution of 1688 – a sovereign parliament made up of the Crown, the House of Lords, and the House of Commons. But there was no support for that system at this time in France, even though Montesquieu, a leading French intellectual, in his Spirit of the Laws3 had written a glowing and insightful account of the liberty the British enjoyed by dividing power among the three estates of the realm. Montesquieu’s political philosophy had far more impact on the American Revolution than the French Revolution. At this time, Honoré Mirabeau, an intellectual marquis, was virtually alone in propounding the British system. The decisiveness of a monarchical sovereign, unencumbered by checks and balances, outweighed any interest in liberty.4 And yet when the French monarch was confronted with a parliamentary solution he could not accept – an assembly dominated by commoners – he dithered. While he did so, the political leaders of the Third Estate reconstituted their estate as the National Assembly, with a mandate to act as a constituent assembly and write a new constitution for France. Clergy and nobles were invited to join the National Assembly and the king was asked to withdraw his troops. On 11 July Louis dismissed Jacques Necker, his leading minister, who was advising the king to settle for some kind of constitutional

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monarchy. The hardliners in the royal court had won out. The fat was in the fire! When Louis called some of his regiments to the capital, the people of Paris feared for their lives. That fear triggered the storming of the Bastille on 14 July 1789. Paris was now in the hands of the mob, and France in the hands of the National Assembly. It all might have turned out differently if Louis XVI had followed Necker’s advice or if he hadn’t lost his nerve and withdrawn his troops from Paris on July 15. The French Revolution was still far from over in the summer of 1789. France remained a monarchy until Louis was guillotined in January 1793. During this period of over three years, sovereignty was truly divided. As Crane Brinton observes in his Anatomy of Revolution, a “dual sovereignty” situation exists when revolutionaries establish governmental institutions alongside the existing legal governing system.5 This temporary existence of dual governments was a feature of other revolutions, including the English one in 1640, the American in 1776, and the Russian and Chinese ones in the twentieth century. In the end, the revolutionaries win out and are able to eliminate the existing regime. As this happens, power within the revolutionary ranks shifts to the most uncompromising radical faction, which becomes an increasingly smaller group – always proclaiming that it represents the people, the nation, or the working class. The National Assembly’s first decree, issued on 4 August 1789, was “an act of sovereignty.”6 The decree brought the privileged classes under its authority “by proclaiming the indivisibility of the legislative power.” On 26 August the National Assembly issued the “Declaration of the Rights of Man.” Its third article, drafted by Marquis de Lafayette, the French general who had fought with the American revolutionaries, declared, “The principle of all sovereignty resides essentially in the nation. Nobody, no individual can exercise authority that does not emanate directly from it.”7 Nonetheless, Louis XVI and his government went right on governing. In the words of one of France’s greatest historians, André Maurois, “The nation had become sovereign, but the Government remained monarchical.”8 In 1790 the National Assembly created a Constitution9 that was still monarchical. The king and the Assembly both

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had veto powers. The king of France had for the moment become king of the French. These confusing events clearly display the fictitious nature of the people or nation that was being claimed to be sovereign. The French people or nation was, to use Benedict Anderson’s phrase, an “imagined community.”10 The reality was that neither Louis nor the revolutionaries came even close to speaking for all the people of France. While the revolution was raging in Paris, the country was deeply divided. Much of the peasantry remained devoutly Catholic and loyal to the king. One of the strongest bases of national patriotism was the French army, the strongest in Europe, which would soon fight and win wars against anti-republican monarchies. The nobility were all over the place, some hanging on as placemen in the royal court, others persuaded that government power should have a popular base. The rising bourgeoisie, the lawyers, notaries, merchants, bankers, scholars, and teachers, wanted political change, but mostly of a moderate nature. By no means were they solidly republican. On top of this there were regions of the country like Brittany, Normandy, and Corsica still harbouring local identities stronger than any identity with the French nation. And, of course, though rarely mentioned by historians, there were the women of France who, even for the most ardent of revolutionaries, simply did not count as members of the political community. The same could be said for the millions of paupers and working-class people, who were certainly not part of “the people” represented in the National Assembly. In the appeal to popular sovereignty, nation and people were interchangeable. Note how the historian Maurois claims it was the nation that had become sovereign. Kevin Olsen in his analysis of “imagined sovereignty” stresses the naturalism – a kind of folk fundamentalism – of referring to the people or nation as the source of legitimate power.11 But of course there was nothing natural or real about the singular unified people or nation of France. What was real, very real, was the power of this “imagined sovereignty” to stir emotions and mobilize millions to believe in their nation and fight for it. We can still feel that today when we thrill to theatrical or film versions of shirt-sleeved crowds singing the “Marseillaise”

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with the Tricolour held aloft. Yuval Noah Harari writes that “in 1789 the French population switched almost overnight from believing in the myth of the divine right of kings to believing in the myth of the sovereignty of the people.”12 In his remarkable history of humankind, Harari shows that it is this capacity to imagine and mobilize large communities that has enabled homo sapiens to prevail over other species.

Europe’s Democratic Age The French Revolution was the climax of a period in European history that historian R.R. Palmer has called “The Age of the Democratic Revolution.”13 Political leaders in Europe and Britain’s North American colonies claimed that the sovereignty of the people justified their right to rebel. Palmer dates the revolutionary age from 1760 to 1800. But for more than a century before that, an ideological revolution had been taking place that laid the foundation for the revolutions of the late eighteenth century: the people were replacing God as the foundation of political authority. There really was no alternative basis for justifying political rule, even for monarchs. Divisive religious wars and growing secularism were eroding belief in the divine right of kings. And if your right to rule as sovereign of a nation state could not be justified by referring to God’s sovereignty, there was really nowhere else to look for a justifying and unifying myth than the nation itself and its people. English politics through the seventeenth century provide an instructive case study of how the “sovereignty of the people” came to be the justifying myth of governmental authority. At the beginning of the century, James I needed the divine right of kings as justification for resisting the claims of the Roman Catholic pope to be God’s vicar on earth. James, like the Holy Roman Emperor, could only match that claim by claiming that his authority came directly from God. The parliamentarians who began to resist James’s absolutism were God-fearing men and were not prepared to deny the sovereignty of God. So they invented “the people” through whom God transmitted political authority. As Edmund Morgan explains,

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“Though God authorized government, He did it through the people, and in doing so He set them above their governors.”14 The parliamentarians who claimed that their right to rule came from the sovereign people were far from being representative of the English people. Most of them were property-owning upperclass Englishmen, constituting a small segment of the population. During the civil war, a group called the Levellers took the concept of the “sovereignty of the people” seriously. They called for counties to be represented according to their population, for annual elections, and for abolition of the House of Lords. The Levellers sought an Agreement of the People to be signed by every Englishman setting down the conditions on which Parliament could govern.15 Though the Levellers had considerable support in Cromwell’s New Model Army, they were easily crushed by the leaders of the Rump Parliament. The last thing that politicians who claim their right to rule comes from the sovereign people need is for a body outside their control to claim it speaks for the people. The aristocratic Whigs who led England’s Glorious Revolution in 1688 were cautious and uncertain when they invoked the “sovereignty of the people” as authorizing the removal of a Catholic, James II, from the throne and replacing him with William III, from the Dutch House of Orange. William was married to James’s daughter Mary, and was renowned for leading the Protestant cause against Catholic France. When William landed in England in 1685 with a small army, James II fled to France. Parliamentarians met with William but could not call their assembly a parliament because James was still king and only the king could summon Parliament. So they called their meeting a convention. Writers of pamphlets proclaimed that the sovereign people authorized the convention, but the lords and commoners were not so sure. The Tories were certainly not ready to embrace the sovereignty of the people, and the Whigs were reluctant to support the idea that the people could install a new king. That smacked of replacing a hereditary monarch with an elected monarch. As Edmund Morgan observes, “the sovereignty of the people, like other fictions, would lose its usefulness if taken literally.”16

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The “people” that the Whigs invoked as authorizing their revolution was a mystical body of English people who over time, going back at least to Magna Carta, had developed England’s constitution. For the Whigs, popular sovereignty meant adherence to the “ancient constitution” that made a parliament of king, lords, and commons the government. English constitutional thinkers were never comfortable with the concept of the sovereignty of the people. They preferred to think of parliament as sovereign. In 1885 A.V. Dicey, the most influential English constitutional scholar of his day, stated that “Parliamentary sovereignty means ... that Parliament has the right to make and unmake any law whatsoever; and further that no person or body is recognized by the law of England as having the right to override or set aside the legislation of Parliament.”17 This statement, as two English scholars have recently pointed out, “is a political conviction about the need for an unrestricted central power.”18 In reality, political power is widely distributed in the British system of governance and, as Dicey acknowledged, rules that are not formal laws but take the form of “unwritten conventions” regulate the proper use of legal powers. Britain’s American colonists brought a belief in popular sovereignty to the new world, but up to the Revolution in the 1770s had not systematically sorted out whether the people they belonged to was the British people or the people of their colony. As in the home country, popular sovereignty was not the product of popular demand but a matter “of some of the few enlisting the many against the rest of the few.”19 Democratic movements on the European continent in the eighteenth century were in part fueled by belief in popular sovereignty. But democratic reformers in Belgium, Holland, and Switzerland were, like France’s Third Estate, middle-class professionals and merchants whose main objective was to wrest power from the aristocracy. Theirs was a “bourgeois” revolution, not a popular uprising. The bourgeoisie’s increasing support for more democratic government had much to do with a revolutionary change in the media of communication. Johannes Gutenberg’s invention of the printing press in the fifteenth century opened up the possibility of mass communication. The investigations of Canadian

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communication scholars Harold Innis20 and Marshall McLuhan21 have shown how, by homogenizing languages like English, French, German, and Italian, print produced a strong sense of national identity among peoples hitherto divided by dialects. This in turn contributed to a growing sense of nationalism, and demands for national self-determination among European peoples.

Locke and Rousseau The printing press also gave literate members of the middle class access to the ideas of political philosophers advancing liberal and democratic theories that challenged the status quo and justified revolution. Just as the French philosopher Bodin and the English philosopher Hobbes laid down the intellectual foundation for the state and its monarch claiming sovereignty, John Locke in England and Jean Jacques Rousseau in France wrote books that set out the case for popular sovereignty. The influence of these two philosophers extends well beyond their own place and time. John Locke was an Oxford don who did not publish anything of great significance until he returned to England in 1689 after six years of self-imposed exile in Holland, where he went to escape the consequences of espousing Whig ideas at Oxford’s arch-Tory college, Christ Church. Back in England, feeling secure with his Whig friends in power, Locke in his mid-fifties became an extraordinarily prolific author. In 1690 he published his two treatises on government, both of which aimed to justify the Whig revolution. Locke’s First Treatise was devoted to doing the negative work of refuting Sir Robert Filmer, the leading intellectual proponent of the divine right of kings. His Second Treatise of Government turned to the positive task of justifying “before world opinion” the legitimacy of the Whig revolution.22 Like Hobbes, Locke saw sovereignty as the product of human rationality, but he was much more optimistic than Hobbes about the rationality with which God had endowed humankind. Locke believed that reason gives humans access to the law of nature that emanates from God. That innate rationality not only enables

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man to know what is right and wrong but also to be sufficiently committed to following God’s law that men can and will comply with it without facing the threat of a sovereign punishing them for non-compliance. I should pause here to note that the democratic philosophers of the Enlightenment, when they are talking about human beings, always refer to “man” or “men,” not to “men and women.” The one exception was the English writer Mary Wollstonecraft, who tried in vain to get the French revolutionaries to address male domination of women. It would be more than a century before the democratic movement in Europe and former European colonies in the new world would begin to address the inequality of women. Locke’s man in a state of nature does not face the ugly Hobbesian choice of anarchy or absolutism. However, life in a state of nature – though by no means a state of constant warfare – does have some “inconveniences” that arise when “men living together according to reason” are “without a common superior on earth to judge between them.”23 It is to remedy these inconveniences that rational men establish government. So Locke’s state of nature is pre-political but not pre-social. It is rational to establish government to secure natural rights and also rational to remove a government that abuses man’s natural rights. Revolution by the people can therefore be rational and legitimate. Locke’s vehicle for establishing government is a social contract. The idea of government being based on a social contract entered into by free, rational individuals became a standard feature of European theories of government in the Age of Enlightenment. Locke’s version of the social contract was an agreement to form a political society made by the members of a group with one another. The key to creating a political society is to agree to empower the majority to establish a government. In Locke’s words: “When any number of men have so consented to make one community or government, they are thereby presently incorporated and make one body politic wherein the majority have a right to act and conclude the rest.”24 Locke had no idea when this social contract took place in his own country or anywhere else. According to him, ordered political societies were formed before recorded history. His belief in a social

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contract was based not on historical evidence but on what he thought were the logical implications of human rationality. Locke does not refer to the “sovereignty of the people,” but his insistence that legitimate government could not exist without the consent of free individuals amounts to the same thing. The consent of all to form a political society in which the majority can commission a government is a pretty thin kind of consent, since the contract was made in the misty past before recorded history. What about the many generations since that founding agreement? Are they bound by that initial agreement? To answer that question, Locke introduced the concept of tacit consent: “every man that has any possessions or any part of the dominions of any government does thereby give his tacit consent and is as far forth obliged to obedience to the laws of that government, during such enjoyment as anyone under it”; even “barely travelling freely on the highway,” a person tacitly consents to the government that makes that free movement possible.25 While the priority Locke gives to securing property rights may seem a narrow conception of the purpose of forming government, a rationale tailored to the interests of his aristocratic Whig patrons, Locke explained that “by property I must be understood here, as in other places, to mean that property which men have in their persons as well as other goods.”26 That broadened understanding of “property” widened the appeal of Locke’s political philosophy beyond the land-owning aristocracy. The downside of Locke’s thinking about property arises from his view that men can acquire ownership of land only by mixing their labour with it. What justifies a man taking any part of the earth that God gave to mankind in common and claiming it as his private estate is that “the grass my horse has bit, the turfs my servant has cut, and the ore I have digged in any place where I have a right to them in common with others, become my property without the assignation or consent of anybody. The labour that was mine, removing them out of that common state they were in, has fixed my property in them.”27 Locke’s view of the right to land ownership in the minds of British imperialists, who were totally ignorant of Indigenous peoples’ cultivation of the land or of the labour-intensive aspects of a hunting,

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fishing, and gathering economy, became a justification for massive dispossession of Indigenous peoples’ lands and waters. When Locke, in 1696, became a member of the Board of Trade and Plantations, the body that shaped Britain’s colonial policy, he was in a position to ensure that his ideas about property were applied in North America. Locke’s political philosophy speaks to liberty more than democracy. By attaching conditions to a government’s right to rule a sovereign state, he took the step that Bodin and Hobbes thought was incompatible with sovereignty. Violation of those conditions by government justifies the majority who represent the people in overthrowing that government. In the concluding chapter of his Second Treatise Locke identified two circumstances in which the “dissolution” of government (a genteel term for revolution) would justify withdrawing the trust of the people. First was when the “legislative” (Locke’s word for the supreme law-making authority) is altered. One form such an illicit alteration of the legislative might take would be giving power to a Roman Catholic monarch whose loyalty was to the pope. The second example of a breach of the people’s trust is when the legislative violates the natural rights of the people by claiming “an absolute power over the lives, liberties, and estates of the people.”28 Setting limits on the right to rule is the essence of constitutionalism, a condition of liberal governance that Bodin and Hobbes could not contemplate. Locke’s liberalism was also manifest in his belief in the merit of “balancing the power of government by placing several parts of it in different hands.”29 The branches of government he identified are the executive, the legislative, and the federative, the last being the conduct of foreign affairs. Locke, as an English parliamentarian, was willing to have the executive and federative in the same hands and make the leaders of the executive part of a king-in-parliament legislature. Although Locke did not identify the judiciary as a separate branch of government, he emphasized man’s need for a “common judge” as a reason for establishing government. By that he meant “a judge who is genuinely a third party and not bound to or by any of the disputing parties.”30 In the 1701 Act of Settlement, legislation that consolidated the liberties the Whigs believed they

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had secured through their 1688 revolution, superior court judges were guaranteed a security of tenure that protects them from serving as they had in the past “at the pleasure of the Crown.” This is a crucial condition of judicial independence.31 Locke’s Second Treatise arrived too late to be a factor in bringing on England’s Glorious Revolution of 1688, and was too genteel to influence the French Revolution, but it was tailor-made for the American Revolution. His books circulated widely in the thirteen colonies, and many Americans imbibed his ideas at British as well as colonial universities. Locke’s moderation and his comforting idea that a political revolution need not disturb the existing structure of society fitted well the temperament of the God-fearing, property-owning, and slave-owning men who led the American Revolution. The 1781 Articles of Confederation began with the statement that “Each State retains its sovereignty.” If that had remained, the United States would not have been a federal state but a confederation. However, the representatives of the states who gathered at Philadelphia in 1789 with no mandate to write a Constitution did just that – they wrote a Constitution that begins with the words, “We the people of the United States ...” – a convenient myth covering up the inconvenient truth that a handful of men wrote the Constitution and had it ratified by state conventions dominated by the same kind of men who wrote it. Chapter 1 of Jean Jacque Rousseau’s Social Contract opens with the ringing words, “Man is born free, and yet we see him everywhere in chains.” That is the rabble-rousing language that made Rousseau democracy’s philosophical saint, even though those who are inspired by his words tend to ignore the small print. Rousseau was born in Geneva in 1712, the son of a family of watchmakers. Although he spent very little of his adult life in Geneva, he idealized the small city state and made it his model for the only kind of community in which true democracy is possible. Rousseau was an intellectual vagabond, never enjoying anything like the comfortable life that Locke had as an Oxford don. His insecurity was self-inflicted. He had an extraordinary knack for biting the hand that fed him – be it the intellectuals he consorted with in Parisian salons; David Hume, the liberal philosopher who invited

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him to visit England; his own birth place Geneva; or Voltaire, the brilliant French writer who befriended him. Here is what Voltaire had to say of Rousseau after offering him temporary sanctuary in Geneva: Excess of pride and envy has ruined Jean Jacques, my illustrious philosophe. This monster dares to speak of education!, he who would not bring up any of his own sons, and placed them all in the orphanage. I should be sorry if he were hanged, but only by pure humanity; personally, I can only regard him as Diogenes’ dog, or rather a dog descended from a bastard of that dog.32

The two Discourses Rousseau published in the 1750s, one on the arts and letters and the other on the origins of inequality, contended that the science and learning of the Enlightenment led to the moral degeneration of mankind. Rousseau was challenging the legitimacy of the wealthy savants who perversely enjoyed his provocative, though brilliant, company. The Social Contract, first published in 1762, did not attract much of a following in prerevolutionary France. It came into its own in the most radical phase of the revolution when Danton, Robespierre, and the Jacobins took charge. In 1794, with the Committee of Public Safety in charge, the new French Republic made Rousseau a hero and had his body (he died in 1778) removed to the national shrine.33 Rousseau turned established social contract thinking on its head. Rather than being an agreement among rational men to form a political society, his social contract is the obligation members of a political community have to abide by its “general will”: “Each of us places in common his person and all his power under the supreme direction of the general will; and as one body we all receive each member as an indivisible part of the whole.”34 Rather than being an agreement made by rational men to secure natural rights, it is the commitment men must make to become capable of true morality. Man fulfils himself morally by living as a good citizen, submitting to the general will of the community. Rather than man’s capacity for reason, it is sentiments of mutual care that mankind shares with other animals, which are fulfilled in a society governed by the general will.

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For Rousseau there can be no second contract, as there is in Locke’s thinking, by which a political society conditionally entrusts power to government. To be free, man must only be subject to laws he makes for himself. Accordingly, democracy must be direct, not representative: all members of the community must engage in articulating the general will. It follows that the political community should be small enough to make it possible for all of its members to work together at law-making. When they engage in making laws, members of the polity should set aside consideration of what will enhance their own or their group’s self- interest and focus on what is best for the whole community. The capacity to think this way requires a society devoid of sharp class interests, a society in which there is a high degree of economic equality. Whereas Locke’s political theory has more to do with liberty than democracy, the opposite is true of Rousseau. For Rousseau, a person enjoys freedom only by participating in the collective freedom of a community governed by its general will. There are no individual rights to be protected from the general will. The general will is always right. But how does one know that a law or regulation expresses the general will? Rousseau insists that the general will is not necessarily the will of all, let alone the will of the majority. A decision can only embody the general will when those making it were genuinely thinking of what would benefit all rather than what would benefit their personal interests. “Whoever refuses to obey the general will shall be compelled to it by the whole body: this in fact forces him to be free.”35 By not formulating an institutional method of identifying the general will, Rousseau’s philosophy opened up the possibility of any group that believes firmly in its own rectitude claiming the sovereignty of the general will. His penultimate chapter on “civic religion,” in which he called for the death of anyone who conducts himself as if he did not believe in the state’s dogmas, sounds like a prescription for totalitarian democracy. But his romantic love of personal liberty quickly asserted itself when he wrote that the dogmas of civil religion ought to be simple, few in number, precisely fixed, and without explanation or comment. The existence of a

We the People Become Sovereign  51 powerful, wise, and benevolent Divinity, who foresees and provides the life to come, the happiness of the just, the punishment of the wicked, the sanctity of the social contract and the laws; these are its positive dogmas. Its negative dogmas I would confine to one – intolerance, which is only congenial to the cults we have excluded.”36

The Perils of Sovereign Peoples It is easy to understand why Rousseau’s Social Contract was so congenial to the radicals who quickly took control of the French Revolution in 1791–92. While the country’s elected Assembly debated constitutional matters with Louis XVI still in power and attending its sessions, radical Jacobins, like Danton, Marat, and Robespierre, plotted the actions of the mob outside the Assembly in the streets of Paris who would make France a republic. Unlike the moderate Girondists who dominated the legislature, the Jacobins were clear about their aim and certain of their rectitude. As the most radical Jacobins took over, their numbers declined, while outside Paris the country remained largely monarchist. Crane Brinton estimates that “the Jacobins at the most generous estimate numbered in their struggle with the moderates about 500,000.”37 The population of France at that time was in the range of twenty million, but that did not stop the Jacobins from declaring that they, and they alone, were carrying forward the will of the nation. In April 1792, the Habsburg emperor, Marie Antoinette’s nephew and the king of Prussia, gave the revolutionaries a break by declaring war on France. Even though France was still officially a monarchy, the Austrian and Prussian governments were afraid that the republican virus would spread to their countries. Their move could not have been more misguided. The call to arms in France mobilized an upsurge of national patriotism and distracted a still relatively conservative country from paying close attention to revolutionary manoeuvring in the capital. After the king with his family fled to Varennes, he was arrested and brought back to Paris. On 9 August, the leaders of the Jacobin-controlled Commune arrested and killed the Marquis de Mandat, who commanded the

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National Guard. The next day rioters overwhelmed troops protecting the Tuileries where the Assembly was meeting, and slaughtered its Swiss Guard and National Guard defenders. The reign of terror had begun. In September, under threat from a newly elected national assembly called the Convention, the Commune began guillotining its aristocratic and middle-class deputies held in the prisons of Paris. “More than twelve hundred prisoners died amid scenes of horror and depravity.”38 The Convention vote in January 1793 to guillotine Louis XVI was surprisingly close – 387 to 334. On 21 January, the king’s head fell. His final cry from the scaffold addressed France’s new sovereign: “People, I die innocent!”39 After that, France experienced a roller-coaster ride through autocratic dictatorships such as Napoleon Bonaparte’s five new republics, with some monarchical interludes and a short spell under the Marxist Paris Commune. Other European states experienced upsurges of republican government and monarchical recovery. Through these regime changes, there was nowhere for the nation state’s sovereignty to be lodged except with the people. In steadier constitutional monarchies like Britain, the Netherlands, and Sweden, the sovereignty of the people remained that misty imaginary people which serves as the underlying authority for the constitution as it moves along its evolutionary path. In western Europe, the United States, and Britain’s white-settler colonies, there was a narrowing of the gap between the fiction of a sovereign people and the reality of how people are ruled. The right to vote was extended beyond poor white males, eventually to women and to racial minorities, though not without a civil war in the United States. For Indigenous peoples within states, participating in the processes of representative democracy has been problematic, as their primary identity is with their historic nations that never surrendered their own claim to sovereignty. Kevin Olsen sees the “power of the people” as a taken-forgranted idea – “part of the wallpaper of our shared world.”40 Although popular sovereignty may have become, as Olson suggests, an ingrained and unchangeable assumption in the modern world, it is still based on a mythical, imagined people. The “sovereignty of the people” has had the benign effect of advancing

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political equality by widening opportunities of all people to participate in politics and governance. That is the good consequence of the belief in popular sovereignty. The bad consequence of the idea arises when political movements or tyrannical autocrats claim to derive their authority from the people. It is then that we face popular sovereignty’s threat to liberty. Today, in the second decade of the twenty-first century, we in the West find our liberties threatened, as they have not been for quite some time, by populist bullies aided and abetted by new means of communication, the socalled social media, which we do not know how to control even if we wanted to control them. The non-European world experienced the harmfulness of claims to sovereignty long before the European age of democracy. That harm began with the age of imperialism, when sovereign European states imposed their sovereignty on non-European nations and peoples. Attributing sovereignty to the “people” did not slow that process down: if anything, it quickened European imperialism by strengthening white Europeans’ confidence in the superiority of their own civilization and their belief in the inability of lesser breeds to enjoy the benefits of their democratic achievements. It is this part of sovereignty’s biography that I examine in the next chapter.

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chapter five

Sovereignty as an Instrument of European Imperialism

On 23 June 1757 at Palashi (which the English called Plassey), a small city on the banks of the Hugli River (the lower Ganges), an armed force led by Colonel Robert Clive routed the much larger army of Siraj-ud-daulah, the nawab of Bengal, opening the way for Clive to march into Murshidabad, the capital city of Bengal.1 Compared with Clive’s numerous previous victories, the Battle of Plassey was not much of a battle. Clive’s small army of not more than three thousand made up mostly of sepoys (poorly paid native mercenaries), with some small artillery pieces manned by sailors from the British fleet backing him up on the river, was able to win the day after a few hours’ exchange with the nawab’s French artillery. This was enough to cause the nawab’s army, which unlike the British had not protected their ammunition from the heavy rain of the night before, to disintegrate. Unglorious as Clive’s victory at Plassey was, historians agree that it was the battle that ensured Great Britain would become the paramount European power on the Indian subcontinent and after that the paramount imperial power in the world. That development also marks the transition of European imperialism from what had largely been the expansion of the state’s metropolitan base into a global competition of European powers for wealth and power. Though admittedly this kind of periodization of history is rough and ready, there is a marked difference between the kind of imperialism England carried on as it absorbed Wales, extended its rule to Ireland and Scotland, and planted colonies in North

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America and the Caribbean, and the empire that prompted Britons to sing “Rule, Britannia!” and paint much of the globe vermillion. David Armitage describes the Second British Empire that begins at Plassey “as an empire founded on military conquest, racial subjection, economic exploitation and territorial expansion.” And he notes that an empire of that character “rendered it incompatible with metropolitan norms of liberty, equality and the rule of law, and demanded that the Empire be exoticised and further differentiated from domestic history.”2 I would like to add to Armitage’s account the observation that the assertion and achievement of sovereignty by a few European states aided and abetted their expansion by providing strong political platforms for global empires. In the mid-eighteenth century, when Britain was competing with France, Holland, Portugal, and Spain for overseas territories, Belgium, Germany, and Italy were not in the imperial game. Those latter three European countries did not become unified states, “perfecting” their sovereignty, until well into the nineteenth century. Sovereignty gave the European nation state the political strength and coherence, as well as the ambition, to compete effectively in the global scramble for wealth and power. Yuval Harari rightly observes that the Europeans were latecomers to imperialism.3 That is why the Romans found it so easy to extend their empire to the north of Scotland. And he is surely right in attributing European expansion from the fifteenth century on to the state’s harnessing the science and technology generated by the Enlightenment to the ambitions generated by the capitalist quest for profits. But I would insist on adding the political structure called the sovereign nation state, very much a European invention, as a contributing factor to the European imperialists’ effectiveness. At the time of Plassey, Great Britain did not assert its sovereignty over India. Like the Dutch and the French, the British were content to let a commercial trading company pursue its national interests in India and Asia. It is not until 1858, a century later, that her majesty’s government took over from the East India Company and endeavoured to rule India. That does not mean that up until then British actions in India were entirely commercial. To protect

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and advance the interests of its shareholders and the wealth of its officers, the East India Company made alliances, clever alliances, with local rulers. The resulting manipulation of local rulers in effect meant a total lack of respect for their sovereignty. The ascendance of a new and vigorous nawab in Bengal, who had the nerve to challenge the East India Company’s expansion of Fort William’s fortifications outside the British settlement at Calcutta, is the event that prompted Robert Clive with a small East India Company armed force and Royal Navy ships to sail from Madras to Bengal in 1757. Nawab Siraj-ud-daulah seized control of Calcutta and put British prisoners in a dark prison that lives on in history as “the black hole of Calcutta.” The English company could not tolerate this effort by a local ruler to assert control over his territory. Clive, who had first come to India in 1745 as a twenty-yearold to serve as a clerk in the East India Company’s Fort George at Madras, made his fame and fortune by switching to the company’s small army and learning how to be successful in fighting “proxy wars” against Britain’s main imperial rival, France. The East India Company and its principal competitor, the Compagne des Indes Orientales, made alliances with rival nawabs or want-to-be nawabs who provided most of the military manpower. Defeating the competition’s local allies would enable the winner to strengthen its control over trade, and give its officers access to fabulous riches. Clive’s first military successes in the south of India, which he achieved as a young subaltern with no military experience or training, were scored against the forces of Francis Dupleix, governor-general of France’s Indian possessions, whose centre of power was at Pondicherry. Clive returned to England in 1752, with a new (English) bride, a lot of money, and the lustre of a national hero. He returned to India on the eve of the Seven Years’ War as a lieutenant colonel with three companies of artillery and three or four hundred of King George II’s troops, escorted by a Royal Navy convoy, and with the East India Company’s promise that he would be its next governor in India. Following his victory at Plassey, which was greatly assisted by the treachery of Mir Jafir, one of the young nawab’s commanders, Clive’s forces had an easy time marching into Murishidabad,

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the Bengal capital, deposing Siraj-ud-daulah and installing the wiley old Mir Jafir as nawab of Bengal. Needless to say, Mir Jafir was liberally rewarded for his co-operation. At this stage in the development of European imperialism, the European states did not claim sovereignty over the people and territories of places like India. Instead, their proxy trading companies simply denied sovereignty to the regimes they found operating in these places. This denial of local sovereignty was extremely disruptive. It meant that European states exercised a great deal of power in these foreign lands, power that not only was unaccountable to the local population but, being exercised by commercial enterprises, was also largely unaccountable to the people in their home countries. A few European nation states whose governments regarded their states as possessing sovereignty were, in effect, claiming the exclusive authority to license the sovereignty of any other ruler or people in the world. The expansion of European imperialism was creating, for the first time, an arena of global politics. When Robert Clive first came to India, England and France were fighting against one another in the War of the Austrian Succession in Europe, a war that involved European states squabbling over the weighty question of whether Archduchess Maria Theresa could succeed to the Habsburg throne. The East India Company’s battles with its French commercial rival were an extension of that war to India. Through the Treaty of AixLa-Chapelle, which ended the war in 1748, France allowed Britain to return to Madras in exchange for the British allowing France to return to Louisbourg and Cape Breton. The Seven Years’ War that officially broke out in 1757 between Britain and France (and was later joined by Spain on the French side) is referred to as the French and Indian War, and is rightly considered the first world war. During that war, the British and French navies squared off in the Mediterranean and the Caribbean, the two European states fought through their proxies in India, and they forged military alliances with Amerindian nations as each struggled to become the paramount European power in North America.4 European imperialism exposed what some authors refer to as the “Westphalian myth.” This is the idea that the Westphalian system

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established in 1648 created an international legal order of equal and independent sovereign states. Up until the latter part of the twentieth century, the Westphalian system was “actually an imperial system of hegemonic and subaltern states constructed in the course of ‘interactions’ between imperial actors and imperialized collaborators and resisters.”5 Decolonization after World War II narrowed the gap between myth and reality, but left many sovereign Third World states subject to First World economic imperialism that greatly curtailed their independence. And we should take notice of the fact that while the Charter of the United Nations begins by affirming “the equal rights of men and women and of nations large and small,” and its first article sets out as one of the UN’s purposes “to develop friendly relations among nations based on the principle of equal rights and self-determination of peoples,”6 the founding states of the United Nations were no more willing to apply those principles to Indigenous nations or peoples than was the League of Nations when it slammed the door on the Haudenosaunee in 1923 and on the Maori in 1925.7 And Third World countries, after achieving decolonization, were every bit as colonialist and self-interested as European states had been in denying sovereignty to nations or peoples within their borders on whom they imposed their sovereignty.

Europeans’ Justice Concerns Within Europe there was a good deal of intellectual criticism of imperialism. The period in which European states began to impose their rule on nations and peoples around the world coincided with the Age of Enlightenment, which nurtured belief in the fundamental equality of human beings. Jennifer Pitts observes that “in France as in Britain, some of the most influential thinkers in the late eighteenth century – such as Diderot and Voltaire – not only criticized the violence of Europe’s imperial practices but also gave rise to a lively scepticism about Europe’s pretended superiority over other peoples.”8 In Britain, Edmund Burke regarded his sustained attacks on British imperialism in Ireland and India as the most important

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work of his life. Burke never came right out and condemned imperialism per se, but he was relentless in exposing what he referred to as the “geographic morality” that characterized Britain’s imperial behaviour. Burke led the impeachment trial of Warren Hastings, the East India Company’s governor in India, in the House of Commons. The twenty-two charges against Hastings all had to do with his insensitivity to the culture, traditions, and laws of the people of India, both Hindu and Muslim, which in Burke’s view amounted to a grave abuse of power. The impeachment trial began in 1778 and did not conclude until 1785. While, in the end, the House of Lords voted not to impeach Hastings, Burke had a good deal of popular political support for the “enlightened humanism” that inspired his forceful, though not always coherent, critique of British imperialism.9 European concerns about justice and human rights in dealings with local populations in their imperial “possessions” go back to the earliest days of European overseas expansion. After Christopher Columbus sailed the ocean blue in 1492 and “discovered America,” on his way back to Spain (whose king and queen had sponsored the Genoa mariner’s voyage) he was detained in the Azores by the Portuguese, who had also been colonizing in the Atlantic. The two Iberian Catholic kingdoms called upon Pope Alexander VI, for Roman Catholics the highest law-giver of the day, to demarcate their entitlements in the new world. The pope responded by issuing a bull that drew a line from the top to the bottom of the world, about three hundred miles west of the Azores. Spain got everything west of the line that was not already possessed by a Christian prince. Portugal got everything east of the line. As Robert Williams has observed, Europe’s conquest of the new world was a legal enterprise, but one in which the Europeans made the law to justify what they took from others.10 The “Alexandrian donation” was challenged by France, which did not accept its exclusion from access to the Americas, and after the Reformation by Protestant states like England and the Netherlands, which did not feel bound by papal bulls. The Renaissance revived Europeans’ interest in Greek and Roman thought, including the idea of natural servitude. One

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historian has written that no piece of classical philosophy “had a more dramatic impact on Amerindians than Aristotle’s theory that one part of mankind is set aside by nature to be slaves in the service of masters born for a life of virtue free of manual labour.”11 Nonetheless it is important to appreciate the extent to which that theory was being challenged in the Age of Discovery by Christian thought, and its belief in the fundamental equality of all humankind. Franciscus de Vitoria, a Dominican priest and leading theologian at Renaissance Spain’s most important seat of learning, the University of Salamanca, responded to King Ferdinand’s request for advice on the rights of Amerindians with a series of lectures, “On the Indians Lately Discovered.”12 As a Christian humanist, de Vitoria was looking for a basis in natural law (God’s law for his creation) to underpin a law of nations. He argued that as free and rational creatures, the Amerindians “undoubtedly have true dominium in both public and private matters, just like Christians.”13 De Vitoria did not deny that it was right for European sovereigns, through discovery, to make political claims in the new world in order to ensure a beneficial order and the exclusion of other European powers. However, he did not think Europeans had any right to occupy the lands of the Indigenous population. Not only Native peoples had rights in the emerging law of nations; according to the natural law based on pure reason, Europeans should be acknowledged as having the right to trade with Native peoples and travel safely through their lands. At this time, the rock-bottom question for Europeans was figuring out whether these strange new populations they were encountering in the new world were another branch of the human race or different creatures altogether. Indigenous peoples, we now know, were asking the same question when white men in big sailing ships first arrived on their shores. In Australia, for example, some Aborigines thought that those aboard the ships, because of their light colour, were ghosts of their ancestors returning. Henry Reynolds writes that “the Aborigines applied to Europeans traditional terms meaning variously ghost, spirit, eternal, departed, the dead.”14 Native peoples in North America were not terribly concerned with whether these alien arrivals were human beings.

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In their ontology, they did not make a sharp distinction between humans and other creatures. But for Europeans, whether the Indigenous people were humans was crucial to the question of whether they had any rights. No one did more to push that question to the forefront of debate in Europe than Bartolomé de Las Casas. Las Casas, who had sailed with Columbus on his second voyage and become a landowner and slaveholder in Cuba, in 1514 experienced a dramatic conversion. The “scales fell from his eyes” and he became “convinced that everything done to the Indians thus far was unjust and tyrannical.”15 He became a Dominican priest and eventually the bishop of Chiapas in Mexico. Las Casas was a powerful publicist. His pamphlets arguing for recognition of the fundamental humanity of the Indians were translated into several languages and distributed widely in Europe. His efforts brought sufficient pressure on King Charles I of Spain, who as Charles V also occupied the position of Holy Roman Emperor, to summon a council of judges to Valladolid to adjudicate a debate on whether Spain’s practice of carrying on conquests in America was just or unjust. The “great debate” pitted Las Casas against Gines Sepúlveda, the leading Spanish legal scholar of the day. Sepúlveda, like so many Europeans, was shocked by the nakedness of Indians and their openness about sex. The “rudeness of their natures,” he claimed, was evidence that they were obliged to serve those of elevated natures such as Spaniards. Against this, Las Casas argued for the fundamental unity of mankind: “All the peoples of the world are men ... all have understanding and volition. No nation exists today, nor could exist, no matter how barbarous, fierce, or depraved its customs may be, which may not be attracted and converted to all political virtues and to all the humanity of domestic, political and rational man.”16 The judges at Valladolid never rendered a verdict. But Pope Paul III issued a bull in 1535 declaring that the Amerindians were not to be treated as “dumb brutes created for our services” but “as truly men capable of understanding the Christian faith.”17 Publication of Sepúlveda’s works was prohibited. Though Las Casas appears to have won the debate at the intellectual level, his victory did not

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change policy on the ground. Spain and other European powers continued their conquests in the new world. Still, as I have noted elsewhere, “the very fact that the debate took place shows a sense of moral unease at the summit of Western political authority about denying other human beings rights that Europeans would, by this time in history, insist on for themselves.”18 Las Casas’s highest aim was to convert the Indians to Christianity through teaching and persuasion rather than force. Granted the Eurocentric character of his thought, for the next four centuries his Christian humanism was the only brake, a weak brake though it was, on Europeans imposing their sovereignty on the peoples of the new world.

Europeans Fashion International Law to Justify Their Imperialism In the seventeenth century, European jurists were developing a law of nations as a foundation for an international legal order. As devout Christians they believed it was important to be able to justify the activities of Christian states in terms that complied with their understanding of natural law – God’s will for humankind, accessed by right reason. A focus of their work was managing claims of sovereignty by European states. Hugo Grotius, a Dutch lawyer and Swedish diplomat, was the leading figure in this law-finding project. His classic work The Law of War and Peace, published in 1625, put forward a law of nations based on a universally valid law of nature. Grotius’s universalism was in fact very Eurocentric. The Law of War and Peace applied only to human communities that had centralized structures of authority similar to that of the emergent European sovereign states. The laws these Christian jurists identified were set out not as codified rule books but as doctrines. One such doctrine was the doctrine of discovery that justified states in claiming sovereignty over newly discovered lands and peoples, providing that no other Christian power had already made such a claim. Emmerich de Vattel, a Swiss jurist and successor to Grotius, whose Law of Nations became the leading international law text in the eighteenth century, added a further

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condition: a state could not “claim possession or appropriate to itself land that it does not really occupy.”19 The requirement of occupation raised the question of how effective and justifiable occupation could be established. This question was answered by making a distinction between two kinds of colonies: those established in uninhabited territories and those established in inhabited territories. The former were classified as colonies of settlement. Borrowing from Roman law, international lawyers considered that an uninhabited land was a terra nullius, a “land of no one” on which the home country could plant a colony of its settlers. Colonies established on already inhabited land could be justly acquired either by conquering the local inhabitants or through the local inhabitants ceding part of their land to the acquiring state. While European jurists and lawyers took these distinctions seriously, they were built on fictitious possibilities. By the time the European imperialists were seizing land and establishing colonies around the world, the only territory devoid of human beings was Antarctica, and the Europeans were not interested in planting colonies among the penguins of that continent. One part of the world that Europeans did want to colonize that had the misfortune to be considered a terra nullius was Australia. Europeans considered Australia as a terra nullius because their racism led them to regard the Aborigines, who had lived on the Australian continent for thousands of years, as subhuman. The colonies established by Britain in North America and New Zealand, on the other hand, were considered to have been acquired by conquest or cession, even though neither Britain nor its colonists, aside from scoring a few scattered military victories, ever conquered the owning nations. Nor did the Maori or any Amerindian nation knowingly and willingly ever cede its homeland to Britain or its colonists. These ideas, dressed up in the fancy togs of legal doctrine, though based on “fake history,” survived well into the twentieth century and to some extent are still with us today as justifications for the sovereignty European settler states claim over Indigenous peoples. It was not until 1992 that Australia’s High Court, in the Mabo case, repudiated terra nullius as justifying the claims of Britain and British settlers over Indigenous peoples in Australia. Even

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then, the Australian judges held that under Australian law settler governments could unilaterally extinguish lands found to be subject to Native Title.20 Though article 3 of the 2007 United Nations Declaration on the Rights of Indigenous Peoples, now supported by over 160 UN member states, recognizes that “Indigenous peoples have the right to self-determination,” article 46, its concluding article, qualifies all the rights recognized in the declaration as not derogating from “the territorial integrity or political unity of sovereign and independent states.”21 Sovereignty as the legacy of imperialism lives on! For Europe’s imperial states, the principal reason for making claims of sovereignty over peoples and lands in the new world was to exclude rival European powers from any benefits that might be derived from the territory, including trade with the local population. Supporting the settlement of people from the European homeland might strengthen a claim to sovereignty, but that was not the main reason for European states promoting settlement in some parts of their empires. The main reason was to relieve population pressure in the metropolitan centre caused by the dislocations of the Industrial Revolution. Settler colonies were seen as a convenient way of dealing with excess population and overcrowded prisons. In parts of the world where European states did not promote settlement, there was less concern about claiming sovereignty. In these areas, European imperialists aimed to promote their economic interests and have their way with local authorities without taking on the responsibility of exercising sovereignty. European states that interfered in the affairs of established societies without asserting sovereignty nonetheless denied the sovereignty of the societies they pushed around. Such denials of sovereignty, as we saw in the account of British and French activities in India that opened this chapter, could be disruptive and harmful. It is important to recognize the harm that resulted from denials of sovereignty by European states. In effect, Europeans were preventing non-Europeans from enjoying the benefits of sovereignty. Yes, sovereignty can do good work: it can protect societies that are

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small, or not militarily strong, or with decentralized systems of political authority, from losing the freedom to conduct their own affairs in their own way, make their own laws, and carry on their own culture and religion. That was the ethical aspiration underlying recognition of state sovereignty at Westphalia in 1648. Respect for the borders of sovereign states did some good in Europe, even though all too often power-hungry states invaded neighbouring countries. But Europeans’ lack of respect for the sovereign rights of organized, functioning communities in the Americas, the Caribbean, Africa, Asia, Central and South America, and Australia did extraordinary harm to the victims of European interference. Two examples stand out in my mind – the Opium Wars when Britain and France forced Chinese authorities to allow them to trade opium for tea and spices, creating an epidemic of drug addiction among the Chinese people, and African slavery when European powers combined with African slaveholders to take members of African societies captive and transport them across the oceans to serve white people as slaves. European imperialism reached its apex in the nineteenth century. This was true in a material as well as an ideological sense. The Industrial Revolution and capitalism gave European states access to technology and money that enabled their armies and navies to have their way outside Europe. Ideologically, the doubts and moral qualms aroused by European imperialism in earlier centuries ceased to be a significant political factor in the 1800s. Pitts uses the phrase “civilizational confidence” to describe the ideological shift.22 People – not just political and intellectual elites but ordinary people – identified with what was referred to as Western civilization, and regarded it as a superior civilization whose bearers had the right (some would even say the duty) to rule the world. No one has captured the spirit of the imperial thrust of this civilizational confidence better than Edward Said, who writes that “over and above profit,” the “commitment that allowed decent men and women to accept the notion that distant territories and their native peoples should be subjugated” was “the almost metaphysical obligation to rule subordinate, inferior, lessadvanced peoples.”23

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Liberal Imperialism In the nineteenth century, what seems like an oxymoronic phrase – liberal imperialism – came into general usage, at least in the English-speaking world. Liberal imperial thought was built on drawing a sharp, simplistic line between “barbarous” and “civilized” peoples. Only European peoples – and not all of them – were considered to be “civilized.” Only civilized peoples were entitled to self-government. States based on civilized peoples not only had a right but also a duty to use their political authority (i.e., sovereignty) over barbarous peoples to make them capable of governing themselves well. That was how these subject peoples would be enabled to share in the material and ideological progress that Western civilization made possible. No one expounded the creed of liberal imperialism more forcefully than John Stuart Mill, the leading liberal intellectual of his day. In his book on representative government, Mill was all in favour of self-government for colonies such as Australia and Canada “whose population is in a sufficiently advanced state to be fitted for representative government.” But there are others, he continued, “which have not attained that state, and which, if held at all, must be governed by the dominant country, or by persons delegated for that purpose by it.”24 Mill did not favour direct rule by the imperial state over the subject people. The government in the metropolitan capital was too distant to understand the needs and capabilities of the peoples in its far-flung empire. Mill wrote Representative Government in 1862, after he had given up the position he held for many years with the East India Company. He had not been in favour of Britain taking over the responsibility for governing the Indian subcontinent from the company. He believed the better course was to have company officials with years of experience in India pick talented members of the local population to do the direct governing, and give them tutelage in the arts of good government. This might lead to representative government by the locals, particularly if a good native despot could be found to guide his people through the transition. Good native autocrats, Mill admitted, were in short supply, but “the ruling country ought to be able to do for its subjects all that

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could be done by a succession of absolute monarchs.”25 For a liberal imperialist like John Stuart Mill, sovereignty might best be exercised through indirect rule, though there was never any doubt that the imperial state’s superior civilization justified its deciding how its colonial subjects should be governed. Liberal imperialism was by no means confined to Great Britain. It is interesting to compare Benjamin Constant, the Swiss-born intellectual writing at the turn of the century, with the French aristocrat Alex de Tocqueville, whose visits to North America in the 1830s became the basis of his classic work Democracy in America. Constant’s Spirit of Conquest was a penetrating critique of imperialism, including Napoleon’s conquests across Europe.26 Constant attacked the militarism that imperial conquest imbues in the people of the conquering state as much as the violence and cruelty it inflicts on the conquered people. He celebrated the Haitian Republic, formed in 1804 by mostly African-born slaves who rebelled against French rule, as showing that people considered barbarous could “become very reasonable legislators, disciplined enough warriors, and statesmen as able and as polished as our diplomats.”27 De Tocqueville, by way of contrast, though very much admiring liberal democracy in the United States, was a strong supporter of French colonization of Algeria. He condemned the violence of French imperialism, but believed fervently in its mission civilisatrice. Writing in the 1840s when France’s conquest of Algeria was opening up possibilities for Arab reorganization, de Tocqueville argued that the French “should permit this renewed self-government but control it and put it to their own use.”28 De Toqueville was more sensitive than Mill to the need to accommodate ethnic and legal pluralism in a country like Algeria, but like Mill he harboured no doubts about the right of a sovereign France to be in charge of how this was done. By the middle of the nineteenth century the surge of a new kind of racial thinking among Europeans was heightening confidence in their superiority over other peoples in the world. Racial thinking has been around for a very long time. Most often in the past it was used loosely to refer to a society or group whose members were thought to have certain very fixed characteristics. In the

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mid-1840s, biological and social scientists were promoting a belief in scientific racism that reinforced popular racial biases. Skulls and genitals were measured to establish racial identities, even though, as Jacques Barzun points out “a satisfactory definition of race is not to be had.”29 A biological determinism – that people who were not white were genetically determined to be less intelligent, less talented than whites – began to influence policy in western countries. So far as sovereignty is concerned, this racism based on junk science had its most potent and damaging impact on a new source of sovereignty claims – those of settlers in European colonies.

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chapter six

Settler Sovereignty

Britain learned one big lesson from the loss of its colonies in the American Revolution: if it was going to maintain the loyalty of the colonies dominated by its settlers, those colonies must enjoy a large measure of self-government. This created a challenging problem for the imperial policy-makers in London: how to give their settler colonies enough freedom to satisfy their democratic aspirations without having the empire come apart. No other European empire had tried to square that circle. In the early decades of the nineteenth century, Britain stumbled towards a solution. The stumbling included putting down settler rebellions in French and English Canada, allowing ex-convicts to participate in the public life of New South Wales and Van Diemen’s Land (future parts of Australia), and establishing a system of parliamentary government in New Zealand in the wake of making a treaty with its Native people, the Maori. By mid-century it was clear that in the colonies where Englishspeaking settlers had become dominant – Australia, Canada, and New Zealand – the colonists would enjoy a large measure of selfgovernment. It was also becoming clear that the political freedom Britain granted its settlers would be at the expense of Indigenous peoples whose homelands were in these territories. Colonial governments accountable to settler populations would insist on asserting sovereignty over all of the people and lands within the boundaries of their territory. They would be joined in practising “settler sovereignty” by the United States of America, whose

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settlers had won their independence from Britain through revolution. In South Africa, English and Dutch settlers also formed governments in the nineteenth century that would aspire to the status of sovereign states. But after the British victory in the Boer War welded the two settler communities together under a single colonial jurisdiction, relations with the peoples native to the country took the form of a white racial tyranny over a large black majority rather than those of settler states dealing with Indigenous people who were fast becoming minorities within the colony’s borders. This new kind of sovereignty claim by European settlers – a second generation of sovereignty claims – would be as vigorously pursued as had any kind of European-imposed sovereignty in the past. In some respects, English-settler sovereignty was more oppressive than British imperialism had been. In the 1774 case of Campbell v. Hall, which dealt with the 1763 Royal Proclamation’s plan for governing the colonies France and Spain had ceded to Britain at the end of the Seven Years’ War, England’s chief justice, Lord Mansfield, enunciated the principle that in a country conquered by the Crown, “the laws of the conquered people continue in force until they are altered by the conqueror.”1 Earlier, when Mansfield was told that under the Royal Proclamation the imperial government intended to replace the Canadiens’ law with English law, he expressed horror at “so rash and unjust an act.”2 And, indeed, Britain’s colonial governors allowed Quebec’s Canadiens to live under their own system of civil law. British governments harboured no doubts about having the authority of a sovereign power to impose its laws on colonial peoples, but they let local laws and governments continue so long as they did not adversely affect Britain’s economic, military, and diplomatic interests. Settler societies, however, as they built their new states in the new world, would want to “perfect” their sovereignty by making their actual rule match the full extent of their sovereignty claim. In her study of settler sovereignty, Lisa Ford writes that “the United States led the world in the articulation of modern sovereignty against indigenous rights.”3 The United States began rather tentatively in asserting its sovereignty over Indigenous peoples. After the Peace of Paris in 1783 ended the revolutionary war, the

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new independent nation, first under the Confederacy and then under the federal government, continued the British practice of making treaties with Amerindian nations to secure access for its colonists to their lands. The first article of the US Constitution gave Congress the power “to regulate commerce with foreign Nations, and among the several States, and with the Indian Tribes.” There was no assignment of jurisdiction over Indian tribes. Lumping them in with foreign nations and the states of the union underscored the Indigenous nations’ independence. The new American republic experienced that independence in spades on its north-west frontier, where it confronted a confederacy of Amerindian nations led by the Shawnee chief Tecumseh, spurred on by the British, who were using the Indians as proxies to block the United States’ western expansion.4 For over a decade, the Tecumseh confederacy resisted the US army that President Washington established to fight the Indian nations.5 The Amerindian nations’ fate was sealed when Britain, in negotiating the Treaty of Ghent that ended the War of 1812, abandoned its promise to support an Indian buffer state north and west of the Ohio River valley. After that, as the frontier of settlement advanced westward, the United States met little resistance in imposing its sovereignty on Native communities unwilling to sell their land in return for small reserves. Further south in Georgia, where the Cherokees and other Native nations had lived for decades in close proximity to settler communities, the state began imposing its laws on Indigenous peoples.6 The denouement came when President Andrew Jackson ignored decisions of Chief Justice John Marshall recognizing Indigenous land rights, and had Congress pass the Indian Removal Act. As a result, the Cherokee were forced to move to the Oklahoma Territory west of the Mississippi. In the bitter winter of 1835–36, four thousand Cherokee (a quarter of the nation) perished along the trail of tears – the modern world’s first experience of ethnic cleansing, and of the full force of settler sovereignty.7 Indigenous peoples in colonial Canada did not experience the force of settler sovereignty until the 1830s, when Britain turned over responsibility for relations with Native peoples to settler governments. In order to provide farm land for the flood of incoming

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settlers, Lower and Upper Canada (today’s Quebec and Ontario), New Brunswick, and Nova Scotia ignored the treaty rights of Indigenous peoples, and pushed them off lands reserved for them to less desirable locations. The legislature of the United Province of Canada (Lower and Upper Canada were joined together after the 1837 rebellions) showed the direction settler sovereignty would take by passing the 1857 Act to Encourage the Gradual Civilization of the Indian Tribes.8 Under the act, an Indian man considered to be of good character by a board of examiners could choose to give up his own and his wife’s and children’s Indian status, detach fifty acres from the reserve land, and live as an ordinary subject of the queen. During the nearly twenty years this statute was in force, only one Indian opted for such “enfranchisement.” After the founding of the Canadian federation in 1867, the new central government pursued, with much more vigour and force, a policy aimed at total assimilation of the Indigenous peoples. The assumption that Indigenous peoples had become subjects of Canadian governments was not based on military conquest nor on the Indigenous nations’ voluntarily surrendering their independence. This policy change occurred because the Indigenous peoples in eastern and central Canada were at the lowest ebb in terms of their material and emotional strength. Contagious diseases resulting from contact with Europeans killed, at the very least, half of the Indigenous population that had come in contact with Europeans. The resulting depression and bewilderment as to why this was happening drained the confidence and spirit of Indigenous communities. The great losses suffered by First Nations warriors in helping Britain defend Canada against US invasion in the War of 1812, and then the abrupt abandonment of these nations as military allies, crippled their military capacity. The new settler administrations encountered little resistance in treating Amerindian nations as conquered peoples. The founding Constitution of the Canadian federation made no mention of Indian tribes or nations, even though Canada would continue after Confederation to make treaties with Amerindian nations as Britain and its British North American colonies had in the past. The only reference to Native peoples was in the list of

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exclusive powers of the new federal Parliament: the twenty-fourth power in that list gave it jurisdiction over “Indians, and Lands reserved for the Indians.”9 This sole reference heralded the Canadian state’s determination to dominate them and eventually eliminate them as distinct components of the Canadian people. The top priority of the new Canadian government was taking hold of the western prairies, the land between Ontario and the Rocky Mountains, for centuries the homelands of Amerindian nations. The first hurdle was getting Britain’s permission to buy out the Hudson Bay Company, which had a Royal Charter that gave it a monopoly of the fur trade over a vast area comprising the entire Hudson Bay drainage system. After that, Ottawa would have to negotiate with a Provisional Government led by the Métis leader Louis Riel that represented the community that had formed along the Red River, near present-day Winnipeg. The Métis, the largest component of the Red River settlement, were the descendants of families formed by French and Scottish fathers and Saulteux, Cree, and Assiniboine mothers. In 1870, the Canadian Parliament passed the Manitoba Act, making Manitoba Canada’s fifth province and meeting most of the conditions required by Riel’s Provisional Government. But that was not enough for the new Dominion of Canada. To show who was sovereign in the new territory, Ottawa sent a military force made up mostly of British soldiers to occupy Red River. This exercise of military power and Canada’s delay in providing land for a Métis homeland forced many Métis to move west to what would become Saskatchewan. To acquire land for settlement on the western prairies Canada reverted to the practice of making treaties with Indian nations. As explained in chapter 1, these treaties, printed in Ottawa in advance of “negotiations,” and never translated into the language of the signatory nations, contained language in which the Indigenous owners of the land were purported to have surrendered all their rights in exchange for small reserves of land; small annual payments of a few dollars a year to every man, woman, and child; plus a few other trinkets and gifts to the chiefs. This dishonest use of treaties was the instrument through which the Canadian government believed it acquired sovereignty over Indian nations,

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although sovereignty was not mentioned in any of the treaties, let alone discussed with Indigenous leaders. To control Indigenous peoples, Canada used legislation, a policy instrument it justified on the basis of the treaties that it assumed transformed Native peoples into Canadian subjects. The legislation, entitled the Indian Act, enacted in 1876, built on colonial Canada’s Gradual Civilization Act but was much more ambitious, and applied to all of Canada. Whereas the colonial legislation aimed to separate Indians from the mainstream society but left them to govern themselves on reserves, the Indian Act aimed to transform them, in their beliefs and practices, into non-Indians. The Indian Act and its many amendments were nothing less than the legal basis of Canada’s imposition of a totalitarian regime on Native peoples.10 No other settler country tried so systematically to force Indigenous peoples to assimilate with the dominant settler culture, or invested as many resources in that undertaking. The Indian Act ignored the Indian nations’ system of government and imposed a system of elected band councils controlled by an official from Ottawa, who also acted as a judge. Instead of fostering economic integration, the act prevented Indians from participating in the local economy – even from selling produce and firewood off the reserve. It banned traditional ceremonies and festivals, and the wearing of traditional clothing without the Indian agent’s permission. The most pernicious program authorized by the Indian Act was the residential school program, under which Indigenous children were forcibly removed from their families to live in schools staffed and run by Christian churches. In these residential schools, children were punished for speaking their own language and sexually abused by priests. An official medical inspector reported in 1907 that the death toll in the fifteen schools he surveyed was 24 per cent. That figure would have been considerably higher if children had been tracked after returning home to their reserves. The Indian Act regime was applied to Métis people, as well as to the Inuit, after the United Kingdom transferred the sovereignty it claimed over Arctic lands and peoples to Canada in the 1880s. In New Zealand or Aotearoa, to use the Maori word for the territory, Indigenous people were involved, as in no other settler

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colony, in the very founding of the country. In the 1830s, Great Britain decided to plant a settler colony in New Zealand. This was partly to alleviate population pressures in the United Kingdom, but also to assert British sovereignty against other countries, mainly France and the United States, which had established fishing stations on the coast of New Zealand. To execute this plan, in 1840 the British entered into a treaty with leaders of the Maori, the Polynesians who had settled in New Zealand a few centuries before it was “discovered” by Europeans.11 The treaty was made at Waitangi near the eastern tip of the North Island, and entered into by chiefs of most of the ewe (tribes) of the North Island as well as a few from the South Island. In the Treaty of Waitangi, Queen Victoria guaranteed to the chiefs and tribes of New Zealand “the full exclusive and undisturbed possession of their Lands and Estates Forest Fisheries and other properties they may collectively or individually possess.”12 There was, however, a crucial difference between the English and Maori versions of the treaty. The English version begins by stating that the Maori chiefs “cede to Her Majesty the Queen of England absolutely and without reservation all the rights and powers of Sovereignty.” But the Maori word used to translate “sovereignty,” kawanatanga, does not convey the sweeping claim to absolute authority of the English word. Thus, though New Zealand was founded by a treaty between the Maori and the British Crown, from the outset the Maori and the pakeha (the Maori word for the British settlers) had a different understanding of the status of the Maori. The Maori accepted that under the treaty they had ceded to the British Crown the exclusive right of pre-emption – that is, if they wished to sell land they could sell it only to the British Crown – but they did not accept that they had given up their right to control land and resources they wished to keep. Once again the absolutist quality of the sovereignty claimed by Europeans shows its perniciousness. The Treaty of Waitangi opened up the floodgates of settler immigration. Within twenty years the Europeans outnumbered the Maori. By 1860, settlers had acquired two-thirds of the country, including nearly all of the South Island, through the process of pre-emptive purchase by the British Crown. The pace of land

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acquisition was too slow for the settlers, who pressured the legislative assembly to ignore the Treaty of Waitangi and allow individuals to purchase Maori land. Again, settler democracy was bad news for Indigenous peoples. Maori resistance strengthened their sense of national identity, which found institutional expression in the creation of a Maori kingship. In 1860, full-scale war broke out on the North Island. In the end, the combination of British troops and a colonial militia prevailed, but the Maori king did not submit until 1881.13 In the settlers’ eyes, military victory consolidated their claim to sovereignty, while for the Maori it strengthened their sense of their own sovereignty or mana.14 In 1867, the Maori Representative Act created four Maori seats in the New Zealand House of Representatives – a first for settler democracy. But it was settler democracy: the act was imposed in a colonial manner, and followed the confiscation of millions of acres of land and legislation that removed Crown protection of Maori lands.15 The Maori integrated more quickly and easily into settler society and politics than did Australian Aborigines, Amerindian nations, or the Arctic Inuit. Unlike these other Indigenous peoples, the Maori migrated to New Zealand only a few centuries before the arrival of Europeans, and they brought with them from Polynesia a social and political culture not sharply dissimilar from that of the Europeans. It also helped that despite the influx of settlers and heavy military losses, the Maori never fell below 10 per cent of New Zealand’s population and increased up to 14 per cent in the twentieth century. In Australia and Canada, the percentage of the population with Indigenous ancestry has stabilized between 3 and 4 per cent, and in the United States, less than 1 per cent.16 The Maori’s status in New Zealand resembles more that of the French in Canada than that of a marginalized minority. But integration is not assimilation: the Maori have retained a strong sense of their identity and political independence, which has enabled them, a century after their military defeat and betrayal, to restore respect for their rights under the Treaty of Waitangi. In Australia, a settler colony was formed all at once on 26 January 1788, when eleven British ships arrived at Port Jackson in Botany Bay (near present-day Sydney) carrying over a thousand British

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subjects, most of them convicts. Thousands more followed in the ensuing years.17 The British wasted little time in claiming sovereignty over the entire Australian continent and the island off the south-west coast that the Dutch had named Van Diemen’s Land and the British renamed Tasmania. The British knew little about the lands to which they laid claim and virtually nothing about its inhabitants. Arthur Phillip, commodore of the First Fleet and governor of New South Wales, the colony formed near Botany Bay, had instructions “to open an intercourse with the natives, and to conciliate their affections, enjoining all subjects to live in amity and kindness with them.”18 The purpose of the sovereignty claim in these first years of contact was to prevent other European powers, especially the Dutch, from establishing colonies on the continent or on Van Diemen’s Land, not to assert control over the natives. Eighteen years earlier, Captain James Cook, after sailing up the east coast of the continent that came to be called Australia, stopped at an island at the northern tip of Cape York. The island was the home of the Kaurareg people, who called it Bedanug. Cook recorded in his diary that he climbed to the island’s highest hill and “once more hoisted English colours and in the name of his Majesty King George the Third took possession of the whole eastern coast from the above latitude down to this place by the name of New South Wales, with all the bays, harbours, rivers and islands situate upon the said coast.”19 Cook, naturally, named the island Possession Island. He knew that the Dutch had charted the land to the west; that was why Europeans referred to the continent as New Holland. At first, the Eora people, near present-day Sydney, thought the strange creatures with the colour of ghosts landing on their shore were spirits of their own people returning. The British settlers were equally uncomprehending about the human-like creatures they encountered. Although the official British legal doctrine would come to be that Australia was a terra nullius when settlement began, the British officers and settlers on the ground, from the day of that first landing, could have harboured no doubts that the Native people they encountered were human beings. However, they knew nothing about the natives’ beliefs and their laws, their

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social and political organization, their economy, nor how long they had inhabited the land. The relations that developed between the settlers and the Native peoples of Australia were more chaotic, lawless, and settler driven than in any of the other British-settler colonies. Treaties, which served as the means of regulating relations between the British Crown and Native peoples in North America and New Zealand, were never given a chance in Australia. When John Batman, on behalf of a Tasmanian settler syndicate, crossed the Bass Strait and negotiated an agreement with the Kulin people to access grasslands on the site of present-day Melbourne, Richard Bourke, the governor of New South Wales, declared the agreement null and void. Bourke was backed up by the colonial secretary in London, who informed Batman that his “treaty” would “subvert the foundation on which all proprietary rights in New South Wales rest.”20 As the frontier of settlement advanced, settlers interacted with Aborigines on a daily basis, sometimes cooperatively – especially in the pastoral industry – but also with a good deal of sporadic violence. The one recorded occasion on which the settler government exercised its sovereign authority to govern Aborigines occurred in 1835 when Attorney General William Burton authorized the trial of Jack Congo Murrell and George Bummaree, Aboriginal men charged with killing two of their countrymen on the road between Richmond and Windsor in New South Wales. Burton justified applying settler law to Aborigines on the grounds that “British sovereignty ... necessitated the exercise of jurisdiction over every person on British land.”21 Though this single imposition of British sovereignty over Aborigines stood for more than a century as a marker of Britain, and subsequently Australia, “perfecting” their sovereignty over all of Australia, the reality is that Aborigines continued to live in self-governing communities under their own laws. Murrell and Bummaree were tried in the white man’s court, “only because their own people abdicated jurisdiction.”22 In the 1880s Britain “annexed” to Queensland (the colony carved out of northern New South Wales) the islands in the Torres Strait, which separates Australia from Papua New Guinea.

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Britain did this largely for geopolitical reasons. Like the Aborigines on the Australia mainland, the Torres Strait Islanders, mostly descendants of Melanesian people who had migrated centuries earlier from Papua, were left largely to govern themselves under their own laws and traditions on the islands where they formed distinct communities. A Torres Strait Islander, Eddie Koiki Mabo, who migrated to the Australian mainland a century later, would lead the successful challenge to Australia’s denial of Indigenous people’s land ownership and its claim to absolute sovereignty over all the land and peoples of Australia.23 In the latter half of the nineteenth century, the touch of liberalism that had been evident in British law and policy relating to Indigenous peoples gave way to racist assumptions. Nowhere is this more evident than in the celebrated lecture series delivered in 1883 by Sir John Seeley, Regius Professor of History at Cambridge University. Seeley contrasted European settlements in Central and South America, where “the European, though supreme, yet lived in the midst of a population of native Indians,” with the European in North America who “supplanted the native race entirely, pushed it ever back as he advanced, and did not blend with it at all.” Casting his gaze southward to the Antipodes, Seeley referred to “the Australian race” as being “so low on the ethnological scale that it can never give the least trouble.” The learned professor found some consolation in New Zealand, where “the Maori is by no means a contemptible type of man.” The elimination of Native peoples was a matter for congratulation, for it meant that “the English Empire is on the whole free from the weakness that has brought down most empires, the weakness of being mechanical forced unions of alien nationalities.”24 The same racist ideology was evident in the jurisprudence of the British Empire’s top judges. Six years after Seeley’s lectures, in the case of Cooper v. Stuart, Lord Watson, speaking for the Judicial Committee of the Privy Council, the Empire’s highest court, pronounced that the Colony of New South Wales “consisted of a tract of territory practically unoccupied, without settled inhabitants or settled law, at the time it was peacefully annexed to the British dominions.”25

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In Australia’s founding Constitution that joined six colonies in a federal union, and came into force on 1 January 1901, these assumptions that treated Aborigines and Torres Strait Islanders as subhumans were manifest in the negative character of the Constitution’s only two references to Native peoples. In the list of powers assigned to the Commonwealth Parliament (the federation’s central legislature), number 26 empowered it to make laws relating to the peoples of any race, “other than the aboriginal race.”26 This exclusion of Indigenous peoples from the Commonwealth Parliament’s “race power” meant that Aborigines and Torres Strait Islands were left to the mercy of state parliaments. Another section stipulated that “[i]n reckoning the numbers of people of the Commonwealth or of a State or other part of the Commonwealth, aboriginal natives shall not be counted.”27 Both these sections were removed by an overwhelming majority of Australian people voting in a 1967 referendum. Still, the Australian Constitution’s inclusion of sections formally denying the very existence of Aborigines and Torres Strait Islanders marks the extreme nature of the sovereignty claim, even when it was made by a highly democratic settler state. My treatment of settler sovereignty has dealt only with states in which English-speaking settlers and their descendants form the majority of the population. In the states formed by settlers of European empires with less liberal reputations, the Netherlands, Portugal, and Spain for example, the harmful consequences of claiming sovereignty over Native peoples – killing sometimes on a mass scale, destruction of traditional economies, lack of knowledge of and disrespect for Native legal systems, denial of self-rule, and the imposition of colonial rule – were equally evident. Moreover, to fully comprehend the perniciousness of claims to sovereignty, the analysis must be extended beyond “blue water imperialism” to situations in which emerging modern states, in expanding their territories, forcefully included within their borders peoples who had developed a strong sense of their own unique identities. India, Japan, Russia, and the Scandinavian countries are leading examples. These peoples, forced without their consent to accept the sovereign claims of expanding states, are included along with the Native peoples of the overseas European empires, in the over three

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hundred million members of Indigenous societies recognized by the United Nations.28 Many Indigenous nations claim their own sovereignty. And why not? If your nation has been clobbered by another claiming sovereignty over you, it makes sense to claim your own nation’s sovereignty. Indigenous peoples think of themselves as belonging to the lands and waters that have historically sustained them, in some cases for many centuries, with the responsibility to care for their traditional territory and all of the nature it sustains, including its human beings. Though Indigenous peoples did not express that relationship through the European sovereignty concept, they can assert their right to control their homeland and governance of the people living on that homeland or who retain close connections with it, by claiming sovereignty.29 In chapter 7, we will see how that claim is accommodated in the United Nations’ Declaration on the Rights of Indigenous Peoples. But first it is necessary to lay the groundwork for making state sovereignty amenable to selfgoverning peoples or nations within the state. That will be done in the next chapter, on federalism. The negative consequences of sovereignty claims reached an apex in the age of European imperialism. After that apex was reached in the late nineteenth and early twentieth centuries, sovereignty did not go away. Old states and new states continue to claim it for themselves and are successful in securing respect for the claim by the international community of nation states. However, efforts of sovereign nation states to impose their sovereignty on other peoples and nations are increasingly challenged. Within sovereign nation states, challenges to a monopoly of sovereign authority by one people and one government also arise and are beginning to experience a measure of success. The next two chapters deal with these challenges to sovereignty’s moral and political absolutism. The first of these push-back chapters is on federalism because the emergence of federal nation states in which government power is divided shows that no single government, people, or sector of a state need be supreme in states enjoying the benefits of sovereignty. Federalism opens up the possibility of removing the absolutist sting from sovereignty.

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chapter seven

Federalism Takes the Sting Out of Sovereignty

I must begin this chapter with an apology. As a seasoned political scientist, I know all too well that there is no quicker way to make people’s eyes glaze over than to say that you are going to discuss federalism with them. Empires, tyrannies, democracies, revolutions are all engaging topics, but federalism seems numbingly dull. It is all about compromise and accommodation and the intricacies of divided jurisdiction, conditions that compete badly with the evils of tyranny, the glories of popular uprisings, and the battlefields of empire. But please bear with me. I hope I can persuade you that federalism, despite its technical dullness, is an exciting development in human affairs, a development that enables us to do something that at first blush may strike you as contradictory: to live in sovereign states in which sovereignty is divided. When the political structures that govern us are truly federal, there is more freedom within the political communities with which we identify. Also, externally, federally organized communities are less inclined to regard their country’s self-interest as the measure of what is right and just, and less resistant to pooling sovereignty with other states in international organizations in order to pursue worthwhile goals for humankind and its earthly home. I promise to make this chapter on federalism short, and I will start off with a story. My story is about the Maritime Bank of the Dominion of Canada that declared bankruptcy in 1887. One of the bank’s creditors was the Province of New Brunswick, whose receiver general sought to

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recover the thirty-five thousand dollars the province had deposited at the bank. New Brunswick was claiming the prerogative of the Crown to be paid in full for its debt before any payment to other creditors. The bank’s liquidators, representing the other depositors, argued that New Brunswick could not base its claim on Crown prerogative because Canada’s founding Constitution had severed all connections of the provinces with the Crown. In the new Canadian federation only the Government of Canada could exercise Crown powers. The implication of this argument was that under Canada’s Constitution the provinces were subordinate to the federal government. The case went all the way to the Judicial Committee of the Privy Council, a group of British law lords sitting in London who at that time served as Canada’s highest court. Lord Watson, the Scottish judge who wrote the court’s decision, in dismissing the argument that Canada’s Constitution had made the provinces subordinate to the federal government, put forward the following definition of the federal system established by Canada’s founding Constitution, the British North America Act: The object of the Act was neither to weld the provinces into one, nor to subordinate the provinces to a central authority, but to create a federal government in which they should all be represented, entrusted with the exclusive administration of affairs in which they had a common interest, each province retaining its independence and autonomy.1

Lord Watson and his British colleagues did not base their understanding of Canadian federalism on any words in the constitutional text. Their thinking about federalism would appear to be based on the treatment of the subject in the leading British textbook of that day, A.V. Dicey’s Introduction to the Study of the Law of the Constitution. Dicey offered the following definition of federalism: A federal state is a political contrivance intended to reconcile national unity and power with the maintenance of “state rights.” The end aimed at fixes the essential character of federalism. For the method by which

Federalism Takes the Sting Out of Sovereignty  87 Federalism attempts to reconcile the apparently inconsistent claims of national sovereignty and of state sovereignty consists of the formation of a constitution under which the ordinary powers of sovereignty are elaborately divided between the common or national government and the separate states.2

Dicey’s textbook definition was miles away from the thinking of Sir John A. Macdonald, Canada’s first prime minister, and a leading father of “Confederation” (the word used historically to refer to Canada’s founding as a federal state in 1867). According to Macdonald, [t]he true principle of Confederation lay in giving to the General Government all the principles and powers of sovereignty, and that the subordinate or individual states should have no powers except those expressly bestowed on them. We should thus have a powerful Central Legislature, and a decentralized system of minor legislatures for local purposes.3

Despite Macdonald, it was the textbook definition of federalism that prevailed in Canada. This was not only because the highest court embraced the idea that federalism was a system of divided sovereignty, but also because this way of understanding and practising federalism had a great deal of popular political support in Canada. Quebec’s French majority would never accept that their province was subordinate to the federal government. Political leaders in English-speaking provinces, especially Ontario, won and maintained power by mobilizing popular support for “provincial rights.” The politics of the Canadian federation became a contest between strong and popular governments at both the national and provincial levels competing for power and popularity. This balanced system of federal politics has remained in place up to the present day.4 The solid support for this dual-sovereignty federalism across parties and in all sections of the country has meant that centralizing features in the founding Constitution, such as the federal government’s power to veto provincial legislation, have become politically unusable.

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Self-Rule and Shared Rule Thinking of federalism as a system of divided sovereignty may not be congenial to many people in states that practice federalism. The United States is a current example. Many of my American colleagues practically throw up at the idea of divided sovereignty. For Americans, having challenged southern slave-owning states’ claims to sovereignty in the Civil War in the nineteenth century, and become citizens of the world’s mightiest state in the twentieth, the idea of sovereignty in their country being divided is anathema. And yet, both the text of the US Constitution and the practice of government and politics in the country comply with the two essential features of a truly federal polity: the two levels of government, state and federal, have independent law-making powers and act directly on their citizens. No matter how a country’s system of government is described, independent legislative powers and direct engagement with citizens by a central and local governments are essential to being truly federal.5 Federations should be distinguished from two other systems of government that have federal features but are not fully federal: alliances of states that delegate powers to a central authority, and unitary states that devolve powers to local authorities. The first of these partially federal arrangements is usually called a confederation. A leading example is the confederacy formed by the thirteen states after the American Revolution in 1776, and that remained in place until replaced by the truly federal system of government embodied in the Constitution of the United States, adopted in 1789. Under the Articles of Confederation, each state retained its sovereignty, but agreed with other states (unanimity of the states was required) to delegate some powers to a central Congress.6 The Congress was not elected by the American people, but was made up of delegates from the states, each state, regardless of size, having one vote in the Congress. Interestingly, this was a true confederation, whereas the unifying of provinces that created a true federation in Canada was called Confederation. The United Nations is an example of a confederacy in today’s world.

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Independent sovereign states have agreed to authorize some central UN authorities – a Security Council, General Assembly, and Secretary General – to perform certain functions. But those central agencies have no independent powers of their own, nor do they engage directly with the citizens of the member states. The European Union is an example of a confederacy that has been moving closer to the structure of a federation. The EU member states through treaty agreements have established a European Commission, the European Court of Justice, and a European Parliament. The Parliament is directly elected by the citizens of the member states. However, the powers of these central agencies depend entirely on treaty agreements among the member states. The central executive is headed by a council formed by ministers of the member states and is not accountable to the European Parliament. Ronald Watts’s detailed comparative analysis of federations did not classify the EU as even quasi-federal,7 though Watts’s verdict is questionable today: the EU’s central institutions have been considerably strengthened over the two decades since his analysis. Ursula von der Leyen, the new president of the European Commission, is strongly committed to making Europe a more autonomous global actor and extending “European sovereignty.”8 EU leaders and citizens may not use “federal” to describe their union, but the European union is surely a leading example of how sovereignty can be pooled to form effective central agencies of government, while retaining the independence of its member states. At the other end of the spectrum are unitary states with powers devolved to various forms of local government. France is a leading example. France’s 101 départementes, five of them overseas, have important administrative responsibilities and engage directly with their citizens, but they have no independent powers that cannot be changed or terminated by France’s central government. Similarly, in the United Kingdom, important law-making powers have been devolved to Scotland, Wales, and Northern Ireland, but this does not make the United Kingdom a federation. The Westminster Parliament, legally, could change its mind and take back some or all of the devolved powers – albeit not without paying a heavy political price that could be the break-up of the United Kingdom.

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Daniel Elazar has written that “self-rule plus shared rule” is the very essence of federation as a particular form of union.9 Federal arrangements provide opportunities for peoples with strong attachments to local territories and distinctive cultures to retain control over their own affairs while combining with other peoples to form a common government that can effectively pursue shared interests. In Europe, federalism drew on a strong current of Christian political thought supporting the principle of subsidiarity – the principle that central authority should have a subsidiary function, performing only those tasks that cannot be performed at a more local level. European peoples were by no means the first to realize the benefits of shared rule and self-rule and of minimizing the role of central authorities. Watts tells us that the “first documented federal system” was established by Israeli tribes over 3,200 years ago.10 Federal associations of nations native to North America long predated the arrival of Europeans. A federal union of five Iroquois nations (known as the Iroquois Confederacy) that had greatly strengthened these Haudenosaunee peoples in relation to other Amerindian nations served as a model for a young Benjamin Franklin in advocating the federal union of American states.11 The provinces of the Netherland in the 1600s formed a union to give the Dutch the strength to break away from the Spanish Empire, although that union did not evolve into a true federation. The Confederacy of Swiss cantons formed in 1291 lasted until 1847, when the Swiss adopted a federal constitution. Johannes Althusius was the first European theorist of federalism. When he published his Politics at the beginning of the seventeenth century, it was not the nation state that he challenged but Jean Bodin’s insistence that in a sovereign state there must be one supreme power.12 That is the crux of how federations take the absolutism out of sovereignty. Since the end of World War II there has been a proliferation of new federations and quasi-federal governmental systems. These new federal systems have been established in all parts of the world. In the second edition of Comparing Federal Systems, published in 1999, Watts lists twenty-four federations functioning in the world at that time.13 Most of the twenty-four are relatively new federations established after decolonization in Third World countries, or

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the restoration of federations in Europe after the defeat of Nazism and later the fall of communism. Federalism has been a good fit for peoples recovering their freedom. A number of federations have come and gone in recent years. The usual reason for the demise of a federation is that the units withdraw their support for the central government. That is what led to the break-up of the West Indies Federation. But a federation can end through the opposite process: the central government’s fiscal domination of the federation erodes the independence of the local units. Some American scholars are concerned that the US states’ fiscal dependence on federal government grants means state independence is illusory. Timothy Conlan observes, in the contemporary American context, that “fewer and fewer people appear committed to federalism as a worthwhile end in itself.”14 That may well be so, but with a populist autocrat at the helm of the American federal government, many Americans must be thankful that the United States is a true federation. American states, including the largest and most populous, are providing the most effective counterweight to President Trump’s government in Washington.

Treaty Federalism Federalism offers settler imperialism’s victims, Indigenous peoples, an opportunity to regain some of their lost freedom. As we saw in the previous chapter, Indigenous nations were denied membership in the international community of sovereign nation states. Through “treaty federalism” they can recover a large measure of self-rule over their own people and territory, while sharing rule, for some purposes, with governments of the settler state. Treaty federalism has been defined as a “nation-to-nation model of governance based upon treaty making between diverse nations within a clearly defined federal structure.”15 For self-rule to be real, the settler state must withdraw its claim of sovereignty over Indigenous peoples. Federalism requires that the self-rule of the local units not be delegated, that one level of government not be subordinate to the other. Indigenous peoples

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did not surrender what Europeans refer to as sovereignty – the right to govern their people and their land. Withdrawing the settler state claim of sovereignty over Indigenous peoples can open up the political and jurisdictional space in which Indigenous peoples can recover a large measure of what they see as the responsibility given to them by their creator to care for the well-being of themselves and the land and waters to which they belong.16 How much self-government an Indigenous nation or people takes on is worked out through treaty negotiations with the federal government and the provincial, state, or territorial governments with which they will share rule. A major factor in those negotiations is the funding an Indigenous people can secure through control of their own resources and grants from other governments. On 13 September 2007, the United Nations General Assembly adopted the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). UNDRIP was the result of over twenty-five years of lobbying at the UN by a worldwide coalition of Indigenous peoples.17 One hundred and forty-four UN member states supported its adoption. A number of countries abstained because they had no Indigenous peoples within their borders. Only four voted against the declaration – the four English-speaking settler states, Australia, Canada, New Zealand, and the United States. These four states, as we saw in chapter 5, had politically active Indigenous peoples within the territories over which the settler state claimed sovereignty, and were engaged in ongoing processes of reforming relations with Indigenous peoples. By 2009, Australia and New Zealand had adopted the declaration, and in 2010 Canada, under the Conservative Harper administration, gave conditional support to UNDRIP. In May 2016, Carolyn Bennett, minister of aboriginal affairs in the Liberal Trudeau government, went to the UN to pledge Canada’s unqualified support for the UN declaration. “We intend,” she said, “nothing less than to adopt and implement the declaration in accordance with the Canadian Constitution.”18 The UN declaration could be a facilitator of treaty federalism, but it remains to be seen how effective it will be in enabling Indigenous peoples to recover their right to govern themselves and control

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what happens on their lands. I expect the biggest stumbling block will be sovereignty. The only mention of sovereignty in the UN declaration is in its final article, no. 46, which states that nothing in the declaration is to be “construed as authorizing any action which would impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.” That phrase comes from article 2 of the United Nations Charter, which states that “[a]ll Members shall refrain in their international relations from the threat of force against the territorial integrity or political independence of any state.” Article 46 might be interpreted as ruling out an Indigenous nation separating entirely from the country it finds itself within and becoming a totally independent state. Few, if any, Indigenous peoples wish to push their sovereignty that far. Short of separatism, the other articles in the declaration provide a good deal of room for Indigenous peoples to govern themselves and control what happens on their lands. Three articles in particular stand out. Article 3 states that Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status, and freely pursue their economic, social and cultural development.

That wording is taken directly from the 1960 UN Declaration on the Granting of Independence to Colonial Countries and Peoples. The 1960 declaration does not use the word “sovereignty,” but it makes political independence the essential condition of decolonization. The only limitations on total political independence that Indigenous leaders have agreed to in accepting the 2007 UN declaration are those set out in that declaration’s final article. These limitations, as we have seen, rule out total separation and require Indigenous peoples to comply with international law, but they do not include settler state sovereignty over Indigenous peoples. Two other articles in the 2007 declaration underline the full control Indigenous peoples are entitled to exercise over their lands.

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Article 26 (1) states that Indigenous peoples have the right to use the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.

Article 32(2) states: States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.

Reading these articles and others that detail the autonomy Indigenous peoples are entitled to with respect to all aspects of their social, cultural and economic life, and their governmental institutions, one finds it impossible to see how settler states can comply with the declaration and yet continue to claim that they exercise sovereignty over Indigenous peoples. In Canada’s case there is a more explicit basis for its settler governments’ giving up their claim to sovereignty over Indigenous peoples. Following an official parliamentary apology in 2007 to Indigenous peoples for the injustice and harm inflicted on them through the residential school program, the Government of Canada commissioned a Truth and Reconciliation Commission (TRC) to conduct an enquiry into that program and make proposals for reforming relations with Canada’s Indigenous peoples. The TRC’s final report in 2015 put forward ninety-four Calls for Action to deal with the legacy of the past and to reform relations with Indigenous peoples. The forty-seventh of these called on the federal, provincial, territorial, and municipal governments “to repudiate concepts used to justify European sovereignty over Indigenous peoples and lands, such as the doctrine of discovery and terra nullius, and to reform those laws, government policies, and litigation strategies that continue to rely on such concepts.”19 The call for

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repudiation of claims to sovereignty over Indigenous peoples is part of two other action calls – one for inclusion in a Covenant of Reconciliation (no. 46 (ii)) and another directed at all religious denominations (no. 49). Although the federal government and a number of provincial governments have embraced the TRC’s ninety-four Calls for Action, it has become increasingly clear that they are just paying lip service to that commitment, and especially those aspects dealing with the continuing imposition of colonialism.20 As Glen Coulthard argues, focusing reconciliation on past abuse and leaving the existing abusive colonial structure intact is turning reconciliation into a “pacifying discourse.”21 The two crucial elements of that continuing colonial legal structure are Canadian governments’ failure to repudiate sovereignty over Indigenous peoples, and the corollary of that failure, treating Indigenous-owned lands as “Crown lands.” Indigenous peoples need not wait for settler governments to repudiate their illegitimate claims to sovereignty. To enjoy the political independence requisite for the self-rule part of treaty federalism, an Indigenous nation can assert its claim to sovereignty over its people and their land. In the words of Mi’kmaq scholar Pamela Palmater, “We can rebuild our nations by living, asserting and defending our individual and collective sovereignty every day.”22 To be effective, such an assertion needs to be based on a high degree of unity within the Indigenous nation, and on wellformed plans for the care and use of the nation’s traditional lands. The fifty-second of the TRC’s Calls for Action calls for settler governments in Canada to reverse the burden of proof with respect to land claims: Aboriginal title claims are to be accepted “once the Aboriginal claimant has established occupation over a particular territory at a particular point in time.” Once Aboriginal title is so established, “the burden of proving any limitation on any rights arising from the existence of that title shifts to the party asserting such a limitation.” Effectively asserting sovereignty and title provides a platform for the self-rule component of treaty federalism. What about the shared-rule aspect of treaty federalism? On an individual basis, Aboriginal people in Canada participate in increasing numbers in all branches of settler governments. They are now present in the federal Parliament in numbers

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almost proportionate to their percentage of the population; many work in the public service of federal, provincial, and territorial governments; and there are many federal and provincial judges of Aboriginal heritage. Canadians of Aboriginal heritage increasingly exercise their right to vote in elections to settler parliaments. But the individual Aboriginals who participate in the settler state’s governmental institutions do not have a mandate to represent the interests of First Nations, the Métis Nation, or Inuit peoples. For that purpose, the Royal Commission on Aboriginal Peoples recommended the establishment of a Canadian Aboriginal Parliament directly elected by citizens of Aboriginal heritage. Like the Sami Parliaments in Scandinavia, an Aboriginal Parliament would be able to voice its concerns on all matters affecting Aboriginal communities, but it would have no law-making power. This proposal went over with Indigenous leaders like the proverbial lead balloon. A more appropriate form of shared rule can be worked out in the negotiations through which First Nations recover their historic nationhood and the Métis Nation gains self-rule. The four northern Inuit communities have already done this or are in the process of doing so. In working out how much jurisdiction is shared and how it is shared, one size will not fit all. There is growing political momentum on the part of Indigenous peoples to assert their sovereignty within settler states. Federations have shown that sovereign powers can be divided between a general government and provincial or local state government, within a sovereign state. Treaty federalism would entail a threefold division of powers within a federal state. That said, I must acknowledge the reluctance of settler governments and those who vote for them, even in a country like Canada, to give up the comfort they derive from the control their claim to sovereignty gives them over Native peoples and their lands. Only by challenging the legitimacy of those claims and actively resisting them are Indigenous peoples likely to succeed in exercising their claim to sovereignty. The United Nations Declaration on the Rights of Indigenous Peoples shows how an international organization can articulate global standards of political justice, but the UN’s lack of governmental power to enforce compliance with those standards

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shows just as clearly the lingering strength of the sovereign state in the world today. The next chapter will look more broadly at contemporary challenges to sovereignty within states and to the power and normsetting of sovereign states in global affairs. These challenges may well leave the sovereign state intact as the most powerful agent of human power, but the aim of my enquiry is to see whether it is reasonable to believe that the most negative consequences of the sovereignty claim can be overcome.

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chapter eight

Sovereignty Challenged Beyond and Within the State

On 5 January 2019, Rahaf Mohammed Mutlaq al-Qunun, an eighteen-year-old Saudi Arabian woman, slipped away from her family while vacationing in Kuwait and boarded a flight to Bangkok, the first lap on her way to Australia where she intended to seek asylum.1 Rahaf Mohammed was from al-Sulami in the north of Saudi Arabia, where her father was the town governor. She said that her family had prevented her from getting an education, locked her up for months, and subjected her to physical and psychological abuse. Her attempt to escape Islam was a crime punishable by death. When Rahaf arrived at Suvarnabhumi Airport in Bangkok, a Saudi embassy official tricked her into handing over her passport to help her obtain a Thai visa that she did not need, as she was not leaving the airport’s transit area, only waiting to catch a connecting flight to Australia. Thai authorities then detained her at the Miracle Transit Hotel. She barricaded herself in the hotel room, refusing to come out until she could meet with United Nations officials. She used her iPhone to gain world attention for her plight. In a very short time, her efforts drew more than half a million tweets using the #SaveRahaf hashtag. Confronted with this worldwide concern, Thai authorities changed their approach and promised not to have her deported back to Saudi Arabia. Phil Robertson, deputy director of Human Rights Watch Asia, exposed the Thai government’s manufacture of the story about Rahaf seeking a Thai visa. On 7 January, the Thai government granted the United Nations High Commissioner for Refugees (UNHCR) access to Rahaf. She subsequently left the airport in the care of UNHCR, which granted

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her refugee status. When the Australian home affairs minister, Peter Dutton, dithered about granting Rahaf asylum, the UNHCR referred her case to Canada. Within a few hours Canadian prime minister Justin Trudeau announced that Canada would grant her asylum on a fast-track emergency basis.2 On 11 January, Rahaf Mohammed flew to Canada, via Seoul, having been granted asylum as a “resettled refugee.” All the factors that are crucial to challenging the hegemony of sovereignty claims are evident in Rahaf’s story. • She appealed to universal human rights to escape her identity as a Saudi woman. As a refugee settled in Canada, Rahaf Mohammed has dropped “Mutlaq al-Qunun,” the distinctly Arabic part of her name. • She used the Internet as a means of communication beyond the control of sovereign states to gain worldwide support. • She was assisted by a non-governmental organization, Human Rights Watch Asia, with global reach, that exposed the deceit of the Thai government. • A supranational UN agency effectively used its political authority to intervene on her behalf. • Canada, a middle power respecter of UN agencies, provided a safe home for the young woman fleeing from a possible death sentence. We can also sense the limits of these challenges to a world of sovereign nation states by considering that Rafal Mohammed’s story might not have had a happy ending if she had landed in Beijing, Moscow, or New York rather than Bangkok. Countries with superpower status accept the authority of supranational organizations only when their governments consider it is in their national selfinterest to do so.

Establishing the United Nations The seminal event in launching a new world order that would significantly challenge sovereign states’ monopoly of legitimate

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political power was the establishment of the United Nations in 1945. Fifty countries sent delegates to San Francisco in April 1945 to draft the founding charter of the United Nations Charter, which was adopted in San Francisco’s Opera House on 21 April 1945. Article I of the charter emphasized the promotion and maintenance of international peace and security, but it also looked forward to the UN being an instrument for promoting international cooperation for humanitarian, cultural, social, and economic purposes. Article II, setting out the principles on which the UN is founded, begins with “the principle of the sovereign equality of all its members.” The charter of the United Nations was, and is, a treaty made by sovereign nation states to ensure a world order based on sovereign nation states. Unlike the League of Nations – whose membership of 46 when it was founded in 1920 rose to 58 in the mid-1930s but had ­dwindled to 23 when it disbanded in 1949 – the United Nations membership grew steadily from the founding fifty to today’s membership of 193. The biggest source of the UN’s increasing membership was decolonization. Whereas the League of Nations managed European imperialism, the United Nations played a major role in dismantling those European empires. Chapter XI of the UN Charter affirmed an obligation to dismantle colonial rule over nonself-governing territories. By 1960, the pace of decolonization had accelerated sufficiently for the UN General Assembly to adopt the Declaration on the Granting of Independence to Colonial Countries and Peoples. The declaration stated that “immediate steps shall be taken, in Non-Self-Governing Territories ... to transfer all powers to the peoples of these territories.”3 David Philpott cites the 1960 declaration of decolonization as the second revolution of sovereignty, with the first revolution being Westphalia.4 It took a great deal of time for either of these revolutions in the organization of international relations to realize its full potential. Indeed, it was not until the dismantling of European imperialism in the mid-twentieth century that the “myth of Westphalia” could give way to the reality of a world order of sovereign nation states in which the recognition of sovereignty does not depend on the say-so of a few powerful Western states.

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There are limits, however, to the decolonization that UN member states committed to in 1960. The populations to which the decolonization declaration applied were entire populations living within territorial boundaries that European empires had constructed. As a result, these new sovereign states in Asia, Africa, and the Caribbean contain within their borders peoples who have never agreed to be part of a larger aggregation of peoples and who have retained their primary identification with their historic nations. Similarly, settler states like Australia, Canada, New Zealand, and the United States did not for a moment consider that decolonization had any application to the Indigenous peoples within their borders. Delegates sent by the Haudenosaunee (Iroquois) to San Francisco in 1945 to seek recognition of their nation’s sovereignty and right to self-determination were told that “their problem was domestic and that it must be resolved within the political institutions of the state.”5 It has taken over half a century since the 1960 declaration of decolonization for the United Nations to begin to deal with this unfinished business of decolonization. In the Westphalian model of the sovereign nation state, the state is the absolute arbiter of right and wrong within its borders. That began with the European states taking control of religion within their territories and rejecting the authority of the pope in their public affairs. At the same time, Hugo Grotius and Emmerich de Vattel were fashioning an emergent law of nations, but their work was based on Christian ideas of natural law, and was highly Eurocentric. Their efforts could not provide the foundation of anything that could be considered to be universal human rights. Beginning in 1948 with the UN General Assembly’s adoption and proclamation of the Universal Declaration of Human Rights, a series of declarations and covenants have articulated rights to which all human beings are entitled whatever their nationality, whatever the sovereign state in which they live.6 In the same year as the UN’s founding, its General Assembly adopted and proclaimed the Convention on the Prevention and Punishment of the Crime of Genocide. The genocide convention was a direct response to the horrors of the Holocaust. It defines genocide as “acts committed with the intent to destroy, in whole or

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in part, a national, ethnical, racial or religious group,” and includes among such acts “forcibly transferring children of the group to another group.”7 These two initial United Nations human rights instruments have been followed by many others. Writing in 2019, Linda Camp Smith reports that “in the past six decades, 14 legally binding human rights–related conventions and protocols have been promulgated.”8 Among the most notable are the Convention Relating to the Status of Refugees (1951), the Decolonization Declaration (1960), the Declaration on the Elimination of all Forms of Racial Discrimination (1963), the International Covenant of Economic, Social and Cultural Rights (1966), the Covenant of Civil and Political Rights (1966), the Declaration on the Elimination of Discrimination against Women (1967), and the Convention on the Rights of the Child (1989).9 These human rights instruments form the basis of a widely shared, international framework for assessing ethically how states treat those who reside in or wish to gain access to their territories. States that accept or adopt these declarations and conventions (and no single one of them is supported by all of the UN’s member states) do not give up their sovereign claim to have a monopoly of legitimate authority in their territories. The International Court of Justice in The Hague (a legacy of the League of Nations) has jurisdiction to settle disputes about the meaning and application of these human rights documents, but it is not backed up by an executive arm that can enforce a state’s compliance with its decisions. Some states, particularly large ones with hegemonic aspirations, do not consent to have allegations that they have violated human rights brought before the International Court. The Covenant on Political and Civil Rights has an Optional Protocol that, if adopted by a state, permits individuals who claim their rights under the covenant have been violated to have their allegations investigated by the UN’s Human Rights Committee. However, an adverse report by the committee can be ignored by the offending state.10 In light of sovereign states’ immunity from any direct enforcement of the norms in these UN human rights declarations and covenants, it might seem that these instruments do not challenge or impose any significant constraints on the exercise of

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sovereignty. Although international lawyers consider the human rights enshrined in many of the United Nations instruments, especially the covenants that have the status of treaties, to be part of international law, international law is not like the law of sovereign states. There is no international sovereign legislator who effectively claims the authority to legislate for all of humankind. Europeans in the Middle Ages claimed that role for the Christian God, but that claim has not been replicated in the modern world. Nevertheless, international relations are not as anarchical as Thomas Hobbes warned any realm was bound to be without a common sovereign law-maker. The founding of the United Nations and the wide support among the sovereign states for these human rights declarations show that the world’s peoples have had their fill of an international arena in which Hobbes’s war of every state against every state is the only principle of order. International human rights law influences how states exercise their sovereignty in both positive and negative ways. Positively, the codification of international human rights has induced new states to include human rights protections in their own legal systems, and older states like the United Kingdom and Canada, which did not have entrenched constitutional bills of rights, to add such instruments to their constitutional systems. The European Convention on Human Rights, inspired by the same spirit that led to the adoption of the Universal Declaration of Human Rights, has become an important part of the EU’s constitutional system. Citizens of EU member states can challenge actions of their government that appear to violate convention rights in the European Court of Human Rights. Negatively, the damage a violation of international human rights norms does to a state’s reputation as a decent country may be sufficiently embarrassing to induce that state to change its policy. This is what happened to Thailand in the story that opens this chapter. Thailand did a 180 degree turn in the way its officials were treating the young Saudi woman seeking refugee status because the situation had gone viral through the Internet, and the country’s government did not want Thailand, which has not enjoyed a reputation as a strong observer of human rights, to be seen as a state that was indifferent to rights.

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The importance of international tourism to Thailand’s economy was also likely a factor in that policy reversal. Saudi Arabia, on the other hand, could not have cared less about blatantly ignoring international rights. The priority for the Saudi government was protecting its sovereign right to maintain a national culture that in its treatment of women does not respect the equality norms of international human rights law. States that enjoy a good human rights reputation may also be moved by being exposed internationally for supporting a policy that appears unreasonable in denying some of its citizens a fundamental human right. For instance, the national government and highest court of my own country, Canada, upheld a law that blatantly discriminated against native Indian women. The law, a section of Canada’s Indian Act, deprived female Indians (and thereby their children) the right to retain their Indian status if they married a non-Indian, while Indian men were free to marry outsiders without suffering the same consequence. Canada did not move to change this part of its law until the UN Human Rights Commission, responding to a complaint by a Maliseet woman, Sandra Lovelace, reported that the Canadian law contravened the UN declaration prohibiting discrimination against women.11 Though the discriminatory aspects of the law are still not fully overcome, the case illustrates the force of international human rights norms on states that take pride in their human rights reputation. Linda Camp Smith points to evidence indicating that “the accountability mechanisms associated with democratic regimes make the anticipated costs for non-compliance significantly greater.”12 But what about states whose governments make no pretence of respecting human rights? Here is where the challenge to sovereignty has been most significant.

Denying the Sanctity of Borders Because sovereignty is a claim, the effectiveness of the claim by any given state depends on its recognition by other states. The world today is witnessing an increasing number of occasions in

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which a sovereign state’s claim that all other states must respect its borders has been denied by international interventions into a sovereign state for humanitarian purposes. An early example was the invasion of Uganda by Tanzania’s army in 1980. Julius Nyerere, the president of Tanzania, explained that the purpose of the invasion was not to destroy the Ugandan state or acquire part of its territory, but to liberate Uganda from the brutal dictatorship of Idi Amin.13 The invasion succeeded in getting rid of Amin, though his regime was followed by a series of dictatorships that did not end until Uganda returned to a more democratic regime under Yoweri Museveni in 1986. The NATO bombing of Serbia in 1999 was triggered by a Yugoslav and Serbian campaign to drive Albanian Muslims out of Kosovo, a province of Serbia in which they were the demographic majority. NATO’s intervention eventually resulted in Kosovo declaring its independence, and the use of an emerging doctrine of international law – the responsibility to protect (R2P). Richard Haass, a former senior official in the US State Department, formulated R2P this way: Simply put, sovereignty does not grant government a blank check to do whatever they like within their own borders. Instead, the principle that sovereignty carries responsibility is gaining ground. We saw this in the humanitarian interventions of the past decade, such as Kosovo. When governments violate the rights of their people on a large scale – be it as an act of conscious policy or the byproduct of a loss of control – the international community has the right and sometimes even obligation to act.14

It is important to note that in Haass’s statement it is the “international community,” not any particular state or alliance, that has the right to intervene. In her incisive, detailed analysis of the duty to protect, Theresa Reinold, a German scholar, tracks the efforts of the United States to act as “a norm entrepreneur” in building support for R2P in the international community. A case that was – and is – highly deserving of invoking the duty of the international community to back an intervention to protect is Darfur in

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Sudan. Since the early 2000s, the Janjaweed, a band of armed and mounted Arab herders, supported by the Sudanese government in Khartoum, have been attacking the Fur, an ethnic group in the Hebba Marra area of western Sudan. The Janjaweed have attacked Fur villages, destroyed their crops, and kidnapped Fur women to be their sex slaves. In 2007, the UN Human Rights Commission estimated that about two hundred thousand had died from these raids, and thousands more were displaced.15 It was a highly regarded Sudanese international lawyer, Francis Deng, who pushed the United Nations to take up the idea that sovereign states’ legitimacy is conditional on their discharging their responsibility to protect their citizens from abuse of their human rights. Deng was the UN’s Special Advisor for the Prevention of Genocide and Mass Atrocities. His efforts led to the establishment of the International Commission on Intervention and State Sovereignty (ICISS). The commission’s 2001 report, entitled The Responsibility to Protect, brought R2P into UN discussions. UN secretary general Kofi Annan championed the principle, arguing that the UN Charter aims “to protect individual human beings, not to protect those who abuse them.”16 Darfur shows that strong respect for the sovereignty of all states continues to act as a barrier against effective humanitarian interventions by the international community, even when the need to protect is widely recognized across the world. In the Darfur case, the UN Security Council, whose permanent members are the most powerful states in the world, passed resolutions affirming the responsibility to protect, imposing sanctions on Sudan and its government leaders, and authorizing intervention by an international military force. The Security Council’s big three, China, Russia, and the United States, all agreed to these resolutions, but insisted on inviting Khartoum to consent to a military intervention. In the end, though a hybrid African Union/United Nations force of just over fifteen thousand was deployed, Sudan’s dictatorial president, Omar al-Bashir, managed the situation by not allowing the international force to disarm the Janjaweed, and by ordering his air force to provide coverage for Janjaweed raids. His shrewd diplomacy, separating China and Russia from the United States, enabled him

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to avoid tougher UN sanctions.17 The Janjaweed continue to this day to have their way in Darfur, even though Bashir has been removed from power. Let’s hope some genuine sharing of sovereign power results from the recent agreement between citizens and the remnants of Bashir’s army. A complicating factor in the Darfur case was that the outbreak of the Janjaweed atrocities overlapped the negotiation of an end to the insurgency of the peoples of southern Sudan against the Muslim rule inflicted on them by the government in Khartoum – negotiations that eventually led to the southern Sudan becoming an independent state. Reinold points out that settling that conflict was “the international community’s overarching concern,” constraining countries involved in those negotiations with Bashir from coming down too hard on him.18 The other factor that was surely crucial in the failure to establish enough unity in the international community for effective humanitarian interventions was the United States’ major interventions in Afghanistan in 2001 and Iraq in 2004. In both, the Americans tried to gain legitimacy for US-led interventions by stretching the notion of sovereign responsibility – in the case of Afghanistan, for the invaded state’s responsibility to control its country so thoroughly that no terrorist organization can operate from its territory, and in the case of Iraq, for the invaders’ responsibility to protect the world from the imminent threat of a rogue state acquiring weapons of mass destruction. These justifications for US-led interventions, rather than building a strong consensus within the international community for the duty to protect, made many countries, especially Muslim ones and the United States’ two big sovereignist rivals, China and Russia, suspect that R2P was being turned into a self-serving doctrine of American foreign policy. This failure of US normative entrepreneurship is likely a contributing factor to the most recent spectacular failure to intervene in a situation of clear and massive abuse of the human rights of a minority group by a sovereign state: the expulsion of the Muslim population from the Rohingya area of Myanmar. R2P has by no means been the international community’s only justification for interventions into the affairs of sovereign states. Since the United Nations’ early days, peace-keeping and

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peace-making have been the most frequent justifications for UN interventions across the borders of sovereign countries. In UN peace-keeping operations sovereign states pool their military resources to deal with situations that have made states ungovernable. Wikipedia lists fifty-seven completed UN peace-keeping missions since 1960,19 and fifteen where UN military forces or observers continue to be deployed. These UN interventions have had wide-ranging results, but they have not posed a serious challenge to the sovereignty of nation states. UN member states have shown no interest in establishing a permanent United Nations military force under the UN’s own independent control. Military power that is viewed as legitimate remains the monopoly of sovereign states directing their own forces or acting in concert through actions authorized by the UN’s most powerful member states. In 2002, 122 states signed the Rome Statute, creating the International Criminal Court (ICC) at The Hague. Under the statue, individual political or military leaders can be prosecuted for crimes of genocide, crimes against humanity, war crimes, and crimes of aggression. The Rome Statute does not violate state sovereignty. Its provisions apply only to individuals whose alleged crimes took place in or under the direction of a state that has adopted and ratified the statute. Many of the largest states, including China, Russia, and the United States, have not done so. To date forty-four prosecutions have resulted in trials before the ICC, but most of those indicted have been small fry from weak states. Omar al-Bashir was indicted by the ICC prosecutor, but still managed to carry on as Sudan’s president and do some international travelling despite the indictment. In the end it was his own military who removed him from office. In short, sovereign states continue to have a monopoly on effective law enforcement and policing.

Non-governmental Forces Challenge Sovereign States The challenges to sovereignty that I have discussed so far are all governmental in nature – UN and other international agencies

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created by sovereign states restricting the autonomy of sovereign states. These international governmental forces, as I have shown, constitute a limited challenge to sovereignty, though a challenge that holds out the promise of gathering strength for protecting human rights. Much stronger limits on state sovereignty come from non-governmental forces operating in the world today that have to do with how we humans satisfy our economic needs and how we communicate with one another. Let me begin with the realm of economics. Sovereign states have never aimed at complete control of all economic activity in their territories, but they have claimed to be the supreme authority for controlling economic activity when necessary for the good of the state. Trading activities going back many centuries in all parts of the world entailed a certain degree of interdependence among polities, including those that considered themselves states. The big change in modern times is twofold: first, not just trade but production and finance have increasingly become global activities; and second, participation in the global economy has significantly reduced the power of the state to control economic activity in its territory even when it wants to. The principal actors in endeavouring to bring order to the global economy have been nation states. Indeed, it is nation states that have been the key actors in trying to govern the economics as well as the politics of the “international community,” and they have done this in much the same way as they went about organizing the United Nations and its agencies to secure peace and advance human rights. In July 1944, well before the end of World War II, representatives of forty-four allied nations met at the Mount Washington Hotel in Bretton Woods, New Hampshire, to work out a worldwide system of controlling the monetary systems of nation states. The main concern was to prevent countries from engaging in competitive devaluation of their currencies. Signatories of the Bretton Woods Agreement undertook to keep their exchange rates from varying more than one per cent. They could do this by backing their currencies with gold or American dollars. With the United States at that time owning over 60 per cent of the world’s gold supply, this was obviously

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a US-dominated system. Not surprisingly, Russia, though represented at the meeting, refused to sign the Bretton Woods Agreement. The Bretton Woods system continued until 1971, when the Nixon administration terminated the convertibility of US dollars into gold, making the American dollar a reserve currency for much of the world. Though the Bretton Woods Agreement did not last, two of its “spin-offs” did – the International Monetary Fund and the World Bank. Like Bretton Woods, these institutions from the start were American dominated. If the condition of the world in the three decades following World War II can be referred to as a Pax Americana, the IMF and the World Bank were key elements of that American hegemony. Important as those institutions have been as instruments for advancing the power of the USA in world affairs, they did not involve the assertion of American sovereignty over the global economy. Power should not be confused with sovereignty. Sovereignty, remember, is a claim of exclusive legitimate authority. The United States did not ground its leadership at Bretton Woods, or in the IMF and World Bank, on a claim of sovereignty. Rather, it has struggled to make these instruments of international economic management appear to be truly international and not emanations of the American state. The main impact of these international economic institutions on sovereignty is the erosion of the effective sovereignty of poorer states. The United Nations Charter guarantees the formal equality of all member states, including the poorest and weakest. This means that all UN member states are entitled to protection from military attacks and invasions. This protection of sovereignty does not protect a sovereign state from being subject to external influences on its economy that are so strong that it finds it will have to pay a high price for exercising its right to self-government. The IMF and World Bank have forced a pernicious fiscal discipline on Third World countries as conditions of loans and grants that reduced health, nutritional, and educational levels for tens of millions of children in Asia, Latin America, and Africa. Neocolonialism shows the limited value of sovereignty for states with limited economic capacity.

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Building a new economic world order after World War II included the General Agreement on Tariffs and Trade (GATT), signed by twenty-three countries at Geneva in 1947. Protectionist policies arising from extreme nationalism were seen by the Allies as a major cause of war, and so GATT aimed at lowering tariffs and fostering free trade among the world’s sovereign states. In 1985, GATT gave way to a new organization, the World Trade Organization (WTO), that was designed to make international trade a much more rule-bound economic activity. The WTO provides a system of rules aimed at fostering open, fair, and undistorted international economic competition and a dispute-settling process. Although most of its members are sovereign nation states, polities like Hong Kong and Taiwan have acceded to membership. The WTO’s focus on the norm of economic competition reflects the Western capitalist ideology. Indeed, the United States at first blocked China from becoming a WTO member, but China kept pressing its case for accession, and finally became the WTO’s 143rd member on 11 December 2001. Accession to the WTO required China to open itself up to international investment, show some respect for intellectual property, and accept the WTO’s disputesettling procedures. In embracing economic globalization, China has had to submit to a regime that emanates from the capitalist West.20 China’s Belt and Road Initiative can be seen as its way of countering the dominating influence of the West. By supplying huge amounts of funding for infrastructure across Asia, in the Middle East and Africa, and increasingly in Europe, China appears to be acquiring influence without imposing ideology or claiming sovereignty.21 What does participation in these international trade arrangements mean for sovereignty? The key point is that entering into treaties and joining the WTO are voluntary acts made by the governments of sovereign states. Decisions to participate may involve choosing the lesser of evils – enjoying the benefits of freer trade and international investment at the cost of less freedom over foreign and domestic policy – but in making that choice countries are not surrendering their sovereignty. Participants retain the right to withdraw.

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The movement behind Britain’s exit from the European Union is largely a response to a widespread feeling in England that by continuing its membership in the EU, the United Kingdom was losing its sovereignty. EU membership undoubtedly reduces a state’s freedom to govern itself entirely according to its own laws and policies. But that does not amount to a loss of sovereignty. The United Kingdom as a sovereign state remained free to exit the European Union. After Brexit, the government of the United Kingdom will likely find that it will have to accept a new set of constraints on its autonomy if it wishes to enjoy the benefits of international trade and investment – not to mention the difficulty of maintaining the unity of the kingdom itself. Up to this point my discussion of globalization has focused on developments and organizations led by sovereign states. This leaves out the truly revolutionary change in the international context – the important role being played by non-governmental, nonstate actors. So big is that role that the concept of international relations, connoting the interaction of nation states, is giving way to global affairs, an arena in which powerful private organizations interact with states. In The End of Sovereignty?, a prescient book published nearly thirty years ago, Joseph Camilleri and Jim Falk wrote that “the integration of global economies and communication systems thus creates a global system of interaction in which the state is but one player amongst others and state borders are becoming less and less important.”22 They cited a contemporary study showing that “of the 100 largest economic units in the world today, half are nation-states and the other half are TNCs (transnational corporations). “23 And that was many years before the era of the Internet. Think of how these Australian scholars’ observation must apply today! Today national industries are few and far between. Most of the goods and services we humans consume come from an international chain of production. The big multinationals make their millions managing brands, outsourcing the grimy work of manufacturing, harvesting, extracting, and shipping to local enterprises in a variety of geographic settings. The same can be said for finance – money and debt move from country to country in

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a nanosecond and can be easily hidden away where national tax collectors and regulators cannot get at it. The drive to be competitive induces sovereign states to deregulate, cut taxes, and reduce labour standards and environmental protection. The European Union has bucked the trend of reducing regulatory standards to the lowest common denominator of its member states by making access to the European common market depend on complying with laws made by its parliament and decisions of its court. That is what persuaded many Britons that their country had lost its sovereignty. The Brexiteers will soon find that unless they opt for the austerity of economic autocracy, their economic life will be subject to the constraints of global competition without the shelter of laws and policies shaped by a community of like-minded states. It is in the realm of communications we experience every day when we go on the World Wide Web that we know that we are living in what Marshall McLuhan called a global village. Philip Howard, in his new book Pax Technica, tells us that whereas 10 per cent of the world’s population was using the Internet in 2000, “by 2015 more than half the world’s population has internet access, two billion people have smartphones, and almost everyone on the planet has a mobile phone or easy access to mobile technology through family and friends.”24 Corporate organizations such as Google, Apple, Facebook, and Microsoft, which provide the platforms for communicating through the Internet, have a good deal of power, but they do not claim sovereignty. They aim to maintain and grow their revenue stream by placating governments of states whose populations form their largest and most lucrative markets. In deciding how to control what their citizens can access through the Internet, governments of liberal democracies have to balance free speech considerations with the need to protect their citizens from messaging that violates their human rights. Countries like China and Saudi Arabia have no such inhibitions. The Xi regime in China is showing how an autocratic state can prevent the Internet from enabling large groups to form in civil society, and also how the state can use the Internet as an extraordinarily effective instrument of social control.25

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Communication via the Internet is not only something that sovereign states try to control; it is also an instrument they use to advance their interests by interfering in rival countries’ affairs. No country has spent more money in trying to protect itself against cyberwarfare than the United States. Yet we have recently learned through the stunning disclosures of the Mueller Report that these efforts did not stop Russia from meddling in the 2016 US presidential election. It is not just states and powerful corporations that use the Internet, but individuals and NGOs (non-governmental organizations). Edward Snowden and Julian Assange have shown how clever “hacktivists” can penetrate and flush out for the world to see the deepest secrets of a powerful state like the United States. The Internet also serves as a source of power for NGOs. Remember it was Human Rights Watch that exposed Thailand’s lie about Rahaf Mohammed applying for a Thai visa. Amnesty International, Médecins Sans Frontiéres, Oxfam, and Greenpeace are just a few of the other NGOs that use the Internet to mobilize global support for progressive causes. And could the Arab Spring have happened without the Internet? Of course, the internet is a two-way street: it is open to bad actors to spread their messages of hate and to autocrats to rally support for squashing their opponents. Yascha Mounk points out that the rise of right-wing populism could not have happened without the Internet.26 The one thing that is clear about all of this is that it shows a fragmentation of power, including the power of sovereign states. In her analysis of sovereignty in an age of globalization, Saskia Sassen writes that “sovereignty remains a feature of the system, but it is now located in a multitude of institutional arenas: the new emergent transnational private legal regimes, new supranational organizations (such as the WTO and the institutions of the European Union), and the various international human rights codes.”27 Sassen should have stuck with the main part of the title of her book, Losing Control? Sovereign states have not recognized the sovereignty of the international institutions she refers to, nor have those institutions claimed sovereignty. Sovereignty is not an “it” that can be transferred to others. It is a relational concept requiring a claim and recognition of that claim by others. But she is certainly

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right in asking whether those states that have effectively claimed sovereignty have lost control of global affairs. During the high tide of European imperialism, the dominant European states did indeed control the parts of the world they wanted to control. Political power on the planet has become so much more fragmented since then that the answer to Sassen’s question is surely yes, sovereign states have lost control. That said, I would still insist that sovereign states remain the most powerful set of actors in this fragmented world. It is only they who have the capacity to deal effectively with the three gravest issues facing our planet, our species, and all of nature: the threats of nuclear war, climate change, and the migration of people.

chapter nine

Sovereign States and the UN’s Fatal Incapacities

The dropping of atom bombs on the Japanese cities of Hiroshima and Nagasaki by American bombers in August 1945 brought World War II to an abrupt end. In the words of celebrated war correspondent Edward R. Murrow, “Seldom if ever has a war ended leaving the victors with such a sense of uncertainty and fear, with such a realization that the future is obscure and that survival is not assured.” In the spring of 1946 Hamilton Holt, a wealthy American who had been a leading activist for world peace since World War I, hosted a conference on world government at Rollins College in Florida. Holt had attended the conference that led to the founding of the United Nations at San Francisco a year earlier, and was convinced that it was a failure because it left sovereignty with individual states. He believed that the UN should be turned into a government with independent sovereign power to control all of the nations’ armed forces. The Rollins College meeting was hardly a gathering of dewy-eyed radicals – it included the president of Standard Oil, the chairman of the National Association of Manufacturers, three US senators, a Supreme Court justice, a congressman, and Albert Einstein. They all supported Hamilton Holt’s “Appeal to the Peoples of the World,” calling for the UN General Assembly to be transformed into the legislature of a world government.1 As we know, this call for world government to control weapons of mass destruction went nowhere. The great powers became engaged in Cold War diplomacy, trying to prevent the immediate

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outbreak of nuclear war. It was not until the 1960s that the United Nations turned its attention to controlling nuclear weapons. It sponsored an Eighteen Nation Committee on Disarmament that met from 1965 to 1968. These meetings resulted in the NonProliferation Treaty (NPT), the first international agreement on nuclear weapons. Nations that accede to NPT agree not to acquire or possess nuclear weapons – except for China, France, the United Kingdom, the United States, and the Soviet Union, the states that already had them at the time the NPT was negotiated. The NPT “deal” was twofold: first, the nuclear-armed states would ensure that nations that did not acquire nuclear weapons would have access to all the non-military benefits of nuclear technology; second, the nuclear-armed states would in good faith commence comprehensive negotiations towards the elimination of nuclear weapons. The Non-Proliferation Treaty aimed not only at stopping the spread of nuclear weapons but of ridding the world of them altogether. Tragically, NPT has failed to deliver on either of its objectives. To date, 191 states have acceded to the treaty. India, Pakistan, and Israel have never accepted it, and though North Korea acceded to it in 1985, it withdrew from it in 2003. The original five states that have built and tested nuclear bombs, and who are the permanent five members of the UN Security Council, have not honoured their commitment to work towards full nuclear disarmament. So today there are nine sovereign states armed with weapons that can blow planet earth to kingdom come – many times over. Every five years, there is an international conference to review progress in implementing the Non-Proliferation Treaty. Douglas Roche, who led the Canadian delegation to review the NPT in 1985, has attended every one of those conferences since 1985. In 1995, promises were made to work towards a Comprehensive Test Ban Treaty and to hold a conference in the Middle East to resolve the issue of weapons of mass destruction. Roche tells us that “all of that was swept aside by the arrogance and bad faith of the nuclear weapon states, particularly the United States and Russia.”2 The historic meeting of US president Ronald Reagan and USSR president Mikhail Gorbachev in Reykjavik, Iceland, in 1987 brought about the second major effort to protect the world from a

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nuclear war. The lobbying efforts of representatives of five middle powers in the capitals of the big five original nuclear-armed states persuaded Gorbachev to meet Reagan in Iceland.3 Much of humanity hoped that this meeting of the leaders of the world’s two superpowers would lead to comprehensive nuclear disarmament. Gorbachev proposed eliminating all nuclear weapons within a decade, but on condition that the United States confine its research on the Strategic Defence Initiative (SDI) to the laboratory. Reagan refused to do that, because he regarded his Star Wars promise to make America forever impenetrable by nuclear-capped missiles as a sacred promise to the American people. The world had to settle for the much more modest Russia-USA Treaty on Intermediate Nuclear Forces (INF), signed in Washington at the end of 1987. This treaty prohibits Russia and the United States from possessing, producing, or test-flying ground-launched ballistic and cruise missiles with a range of five hundred to fifty-five hundred kilometres. At least INF responded to the growing threat of the tactical use of nuclear weapons – using them not to win a world war between the superpowers but to provide a tactical advantage in smaller conflicts that might break out in Europe or the Middle East. By 1991, the USSR had destroyed 1,846 missiles and the USA 846. One of INF’s achievements was to establish machinery for on-site verification inspections of each side by the other. The Treaty on Intermediate Nuclear Forces was disappointing, but it was a small step in the right direction. And then along came Putin and Trump, who are threatening to withdraw their nations from the INF. The mutual suspicions driving the termination of this treaty began in 2010 when the Obama administration announced it would use interceptors that can be launched from Aegis destroyers. In October 2018, President Trump announced that the United States would withdraw from INF within 180 days unless Russia addressed his government’s concerns about a new medium-range missile system. This backward step, Douglas Roche comments, means “we are on the verge of the collapse of the nuclear disarmament architecture.”4 The other major piece of that architecture is the Strategic Arms Reduction Treaty (START). Again, this was a treaty between the

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United States and the Soviet Union, negotiated in 1991, that came into effect in 1994. START required the two countries to reduce their nuclear warheads to 6,000 each and their systems for delivering warheads to 1,600 each. When START-1 expired in 2009, Russian president Medvedev and US president Obama signed a new START agreement calling for significant further reductions in warheads and delivery systems. The new START expires in February 2021. Neither Russia nor the United States shows any interest in preparing for a renewal. On the contrary, Subrata Ghoshroy of the Tokyo Institute of Technology points to US budget estimates that will increase expenditures on nuclear arms.5 Another nuclear arms race is brewing, this time with China making it a three-cornered race. The fear engendered by the nuclear-armed states’ abandoning disarmament has mobilized non-nuclear states. In July 2017, the UN General Assembly adopted the Treaty on the Prohibition of Nuclear Weapons (TPNW) prohibiting the possession of nuclear weapons, with 122 states voting in favour. The nuclear-armed states did not take part in the negotiations that led up to the treaty but did not vote against it – they abstained. Ditto for all the states that belong to NATO. The Netherlands took part in the negotiations, but in the end abstained. The aim of the treaty is to stigmatize nuclear weapons, so that they join chemical and biological weapons and landmines as morally unacceptable instruments of warfare. The treaty includes detailed procedures for nuclear states to destroy their weapons. To date, seventy nations have signed the treaty, and twenty-three have actually acceded to its terms. These countries include Austria, Cuba, New Zealand, and South Africa. The deterrent effect of mutual assured destruction (MAD), mad as that idea seems, may actually be working. However, the immediate danger of nuclear weapons lies not only in the danger of nuclear states deciding to use them, but in an unauthorized use of them or an accident in handling them. The falsehood that the use of nuclear weapons is subject to a foolproof command-and-control system has been exposed by senior American officials. General George Lee Butler, who became the head of the Strategic Air Command in 1991, commenting on the flaws he found in the Single Integrated Operation Plan (SIOP), told us that “with the possible

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exception of the Soviet nuclear war plan, this was the single most absurd and irresponsible document I have ever reviewed in my life.” He recalls that “I came to appreciate the truth ... we escaped the Cold War without a nuclear holocaust by some combination of skill, luck, and divine intervention, and I suspect the latter in greater proportion.”6 Daniel Ellsberg has shown how nuclear powers, wary of a “decapitation” (killing the head of government), delegate the authority to respond to an apparent nuclear attack.7 Testifying to the US Congress in 2013, General C. Robert Kehler, another head of Strategic Command, admitted that he did not know whether the United States, Russia, or China could prevent a hacker from launching one of their nuclear weapons.8 We have recently learned that China, Russia, and the United States are developing supersonic missiles, capable of travelling at more than fifteen times the speed of sound, giving targeted countries only a few seconds to respond. In these circumstances, nuclear powers are not likely to foreswear launching a first strike.9 The imminence of the nuclear danger leaves no time for working towards establishing a world government, the solution favoured after World War II. We must rely on agreement among sovereign states to eliminate nuclear weapons, along with other weapons of mass destruction. The prospects of such an agreement are not dismal. It is encouraging that 122 sovereign states supported the UN treaty to eliminate nuclear weapons, and the nuclear states abstained rather than voting against it. It really comes down to the big three: China, Russia, and the United States. If the peoples of these states, who are theoretically supposed to be sovereign, can move their governments to commit to elimination, I think these governments can find ways of providing security guarantees to the six other nuclear states, including North Korea. Climate warming, as a threat to all of us and all living things on our planet, differs from nuclear weapons in two respects. First, although some parts of the world are experiencing right now the harmful consequences of global heating – for instance, the people and creatures of the Arctic and Antarctica – the serious damage it could cause, unlike the imminence of a nuclear disaster, lies a few years ahead. Individual human beings have the great gift of

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scientifically researching long-term consequences of current conditions. That is a unique benefit homo sapiens contributes to planet earth. However, collectively, human societies are not good at long-term decision-making, and it is precisely long-term thinking and policies that are needed to deal with climate change. Second, unlike the nuclear threat that most of us individually can do nothing about, each and every one of us can and should do something to counter the worst consequences of global warming. Sovereign states must play the main role in establishing the policies that can prevent disaster, but those policies will not be effective unless we the people change the way we live. UN member states began to turn their attention to environmental issues when they attended the UN Conference on Environment and Development at Rio de Janeiro in June 1992. The so-called Earth Summit responded to a growing recognition among thoughtful people in many parts of the world that making the growth of material wealth the supreme virtue of man’s economic pursuits was resulting in serious damage to the environment. Economic development, the growth of productive capacity – especially for peoples of the Third World – was essential, but had to be “sustainable,” that is, must not be destructive of natural resources and ecosystems needed for life on earth. Rachel Carson’s Silent Spring, published in 1962, alerted the world to the damage to the environment caused by chemical pesticides used to increase productivity.10 Five years later Italian industrialist Aurelio Peccei convened an international meeting of government officials, diplomats, academics, and industrialists concerned about the need for a holistic approach in dealing with issues of poverty, health, and the environment. The group called itself the Club of Rome. Its 1972 book, entitled The Limits to Growth, pushed policy-makers and researchers to consider environmental consequences in assessing the contribution of economic growth to human well-being.11 In 1987 the Brundtland report, issued by a group of scientists and economists headed by Gro Harlem Brundtland, the physician politician who three times served as Norway’s prime minister, put forward detailed policy guidelines for “sustainable development” – a way of “growing” the economy that

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will not destroy the natural resources and ecosystems required for sustaining life on the planet.12 I mention the work of these individuals to underscore the important role individuals play in getting governments and politicians of sovereign states to attend to longterm conditions for human well-being. The work of the Intergovernmental Panel on Climate Change (IPCC), a group of climatologists and earth scientists brought together by the United Nations in 1988, shifted the international community’s environmental focus from sustainable development to the perils of global warming.13 The IPCC’s function is to assess the research of scientists on the speed at which the temperature of the surface of the entire planet is rising and the extent to which the heating up of the earth is anthropogenic (the result of human activities). The IPCC membership includes leading scientists from many different countries, and thousands of scientists submit their work to it. This has enabled the IPCC to build an international scientific consensus that carbon emissions are a significant cause of global warming. As on any scientific question – from evolution to whether the earth is round – there are dissenting scientists, but the consensus on the human contribution to global warming is strong enough to provide a basis for calculating the rate at which nation states must reduce their carbon emissions to avoid the extreme conditions that would make the planet virtually unlivable. That is the background to a continuing series of international meetings, beginning with Kyoto in 1997, that have struggled to organize a collective commitment among the sovereign nations of the world on reducing carbon emissions. The Kyoto Protocol left it to participating nations to set their own reduction targets.14 The agreement recognized the greater obligation of industrialized countries to contribute to reducing global warming than of Third World countries, whose economic development had been curtailed by Western imperialism and who were just beginning to enjoy the benefits of industrialization. The accord was supported by virtually all UN member states, but was never ratified by the United States. Canada has the distinction of being the only state to formally withdraw from the Kyoto accord. This happened under Prime Minister Stephen Harper’s administration in 2012. Harper

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saw no point in Canada’s committing to reducing carbon emissions so long as much bigger contributors to global warming such as China, Russia, and the United States were doing little to reduce their emissions. At Doha in 2012, Kyoto was amended by setting a new round of targets. By July 2019, 130 states had adopted these targets.15 Adoption by 144 states is required for the Doha amendment to “come into force” – but bear in mind that “coming into force” means self-enforcement, not enforcement by an international environmental police force. In 2015, representatives of 195 countries met in France and agreed, by consensus, to the Paris Accord.16 This accord was not an amendment to the Kyoto Protocol, but a setting, for the first time, of a global target for arresting global warming: the increase in global average temperature should be kept well below 2 per cent above pre-industrial levels. Just 1.5 per cent above pre-industrial temperatures is the recommended goal if the worst consequences of global warming are to be avoided. Each county is to establish its own plan to reduce emissions at a pace that will enable it to be only 1.5 per cent above pre-industrial levels by 2025 or 2030, and must report regularly on its progress in meeting its reduction target. In 2017, President Trump withdrew his country’s support for the Paris Agreement; the withdrawal becomes effective in November 2020, at the very time of the US presidential election. Given that the United States is exceeded only by China as a contributor to global warming, the withdrawal is unfortunate. But thank goodness for federalism: a number of US states are committed to the Paris Agreement target, including some, like California and New York , with the largest carbon footprints. They have adopted policies designed to meet the Paris Accord objective.17 On 8 October 2018, the Intergovernmental Panel on Climate Change issued a warning to the world that we must cut carbon pollution in half over the next eleven years to avoid catastrophic consequences for all humanity. Debra Roberts, a co-chair of the IPCC working group, explained: “It’s a line in the sand and what it says to our species is that this is the moment and we must act now. This is the largest clarion bell from the science community and I hope it mobilises people and dents the mood of complacency.”18 The IPCC’s

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warning sparked a debate in some democratic states on whether or not the warming of the planet has reached the crisis level, requiring extraordinary measures. Here we encounter the important difference between supporting sustainable development and avoiding catastrophic global warming. The concept of “sustainable development” has the attractive sound of “having your cake and eating it too” – we can deal responsibly with protecting the environment without having to make any changes in the way we live. That happy possibility, however, does not hold for the actions required to arrest the rapid warming of earth’s climate. Scientists who measure the anthropomorphic causes of global warming advise us that if catastrophic levels of warming are to be avoided, we humans must make significant changes in the way we live – the way we travel, what we eat, our treatment of waste, our management of the commons, especially the oceans, and many other aspects of everyday life.19 This creates opportunities for political parties to rally support by focusing on the immediate economic consequences – higher taxes, job losses, and the like – of proposals needed for reaching global warming targets, and tempts parties that want to stay in power to compromise their commitment to achieve carbon reduction targets. In my own country, the governing Liberals purchased a pipeline to carry fossil fuels to market at the same time that it acknowledged the validity of the IPCC crisis report. It is probably easier for autocratic regimes to make the changes required.20 Sovereign states, by working in concert to set quantitative goals for reducing the risk of a global catastrophe, may have exhausted what they can do collectively to save the planet from the most severe levels of global warming. The ball is now in the court of “we the people,” who are alleged to be the source of sovereign authority in nation states, to respond to the IPCC’s call to mobilize our leaders and dent the mood of complacency. There are growing indications that the youngest politically active generation will lead this mobilization. Greta Thunberg, a sixteen-year-old Swede, has become the most effective leader on the planet in calling for action to arrest the pace of global warming. “Yes, we are angry,” she said at a rally in Germany, “We are angry because the older generations are continuing to steal our future right now.”21

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The global melting of glaciers and polar ice is causing a rise in global sea levels that already forces many to flee their homelands. This will become a major contributor to massive human migration, the third major global challenge to sovereignty. The World Refugee Council reported at the beginning of 2019 that 68.5 million people have been forcibly displaced. The world has not seen migration on this scale since the Westphalian states, with their strong sense of territorial rule and controlled borders, came into existence.22 This massive migration is occurring in an era in which there is a resurgence of nationalist concern about who is getting into the country. As Saskia Sassen observes, “There is a growing consensus in the community of states to lift border controls for the flow of capital, information and services ... But when it comes to immigrants and refugees, whether in North America, Western Europe or Japan, the national state claims all its old splendour in asserting its sovereign right to control its borders.”23 It is no coincidence that this rising resistance to immigration in relatively affluent industrialized countries is occurring at a time when there never has been more pressure to admit immigrants and refugees. Over the last few decades, except for the richest one per cent at the top, a large majority of people in the industrialized countries have experienced stagnating incomes, after a period of unprecedented constantly rising ones.24 Yascha Mounk points to income stagnation as a major factor in explaining the rising popularity of right-wing populism in the democracies.25 Blaming immigration for declining economic expectations has become a trump card for right-wing populists, not only for President Trump’s administration in the United States but also in the European Union. Mount gives the example of Estonia, where emigration outstrips immigration and non-European migrants are just 1.1 per cent of the population. Yet according to a 2016 Eurobarometer poll, 73 per cent of Estonians see immigration as the most serious issue facing the European Union.26 In 2016, the EU paid Turkey six billion euros to stop the outflow of Syrian refugees. In the Mediterranean, Italy, with EU support, has pushed Libya to keep hundreds of thousands of African migrants from getting to Europe, confining them to facilities with appalling living conditions, and

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has obstructed humanitarian groups’ efforts to rescue desperate migrants from drowning off the Libyan coast.27 Raising fears about the loss of sovereignty is the most potent part of anti-immigration politicians’ pitch. In Canada, a country in which there has been a bipartisan consensus in support of a relatively liberal approach to immigration and refugee policy since the 1950s, the centre-right Conservatives have been testing the political waters for differentiating their party from the centre-left Liberals by taking a tougher stand on immigration. Responding to protests on Parliament Hill against Canada’s signing of the UN global immigration pact, Conservative leader Andrew Scheer “has repeatedly said the compact threatens Canada’s sovereignty.” The Conservatives have called on the House of Commons to block the deal. Their immigration critic, Michelle Rampel, referred to the pact as a “border-erasing policy.”28 All of this is hyperbole: the UN agreement fully respects the sovereignty of participating states in retaining full control over their immigration and refugee policies, and their borders. The Conservatives know this, but they also know how dearly people love their country’s sovereignty. That is why they play the sovereignty card. In September 2016, the United Nations General Assembly unanimously adopted a declaration calling for an international agreement on migration. Secretary General António Guterres appointed Louise Arbour, a former Canadian Supreme Court judge and former UN human rights commissioner, to be his special representative for international migration. Over the next two years, work on an agreement proceeded under Arbour’s guidance. In December 2018, the General Assembly approved the final text of the Global Compact for Safe, Orderly, and Regular Migration (GCM), with 152 countries voting in favour. Notable among the countries voting against the compact were Hungary, Israel, Poland, and the United States.29 The GCM is a very wordy document, a carefully crafted listing of objectives and commitments, not a rule book nor an assignment of quotas. It has a soothing, calming tone, calling for states to handle the challenge, as well as the opportunity, of migration in a fair and orderly manner. Still, it states important principles that

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have been under attack in some countries, especially non-discrimination. Rather than supporting the rejection of migrants who cross borders illegally, the compact stresses the importance of migration proceeding in an orderly and regular manner. This has bothered some states (Australia, for example), but avoids the implication that the immigration laws of all states are fair and non-discriminatory. The second of the twenty-three listed objectives and commitments is that the UN member states should work together “to minimize adverse conditions and structural factors that compel people to leave their country of origin.” As an earlier section of this chapter shows, “fixing” countries whose governments are denying citizens fundamental human rights and treating minorities brutally is more easily said than done. The aim to fix should not serve as a reason to duck the responsibility of providing a safe home for those fleeing unfixed states. And of course there remains the principle of state sovereignty. The compact begins with a statement of principles. Right after the first principle, which is the fundamental importance of the well-being of every human being, comes a strong recognition of sovereignty: “The Global Compact reaffirms the sovereign right of States to determine their national migration policy and their prerogative to govern migration within their jurisdiction, in conformity with international law.” Two of the three challenges to sovereignty discussed above are truly existential: unless they are effectively addressed, we will lose our earthly home. The third, migration, is existential in a different sense: if it is not addressed, a growing portion of humankind will not have a decent place on earth in which to live. In addressing these challenges we can see both the minus and plus sides of state sovereignty. On the downside, the incapacity of sovereign states, individually or collectively, to attack directly any of these issues is all too evident. Sovereign states in large numbers can agree to ban nuclear weapons, but if states that have these weapons do not participate, the ban is ineffective. Sovereign states can agree that global warming is a crisis and determine the policies that must be adopted to avoid the crisis, but if the governments of states that are major contributors to the carbon emissions causing the crisis reject those policies, mitigating the crisis will depend on our own actions

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as individuals. Sovereign states can agree to principled ways of opening their borders to the millions now being forced to leave their country of birth, but will have to beat back an upsurge of nationalist sovereignty jitters to give effect to those principles. On the upside, it is clear that sovereign states are the only international political entities that have the will, and potentially the power, to deal with these issues. There are other powerful non-governmental global players, but the United Nations, founded by sovereign states, has been the one and only instrument for expressing that will and marshalling the necessary power. Smaller groupings of states, like the G7 and G20, bring together the most powerful nations in the world, but thus far they have not shown a capacity to take on the really big issues.30 Sovereign nation states are the only governmental agencies we have to deal with the biggest issues facing our species and our planet. Their effectiveness in dealing with these issues will depend on their capacity for cooperation.31

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Conclusion

When the Dene woman forty-five years ago asked me those two questions referred to in the opening chapter of this book, I thought her first question – what is sovereignty? – would be easy, a slam dunk. After all, I had been teaching about sovereignty at the University of Toronto for many years. Surely I knew all about it. However, it turned out that as I researched her second question – how did the Queen get it over us? – I found that I did not really have a satisfactory understanding of sovereignty. After a few years of investigating how the British and then the Canadian governments asserted their states’ sovereignty over the peoples native to North America and Australia, and over their territories, I discovered that sovereignty wasn’t a thing or a law, but a claim. That discovery makes a world of difference, because a claim can be resisted, a claim is only as good as its acceptance by others. In that sense it is a relational term. As I investigated the use of sovereignty by European imperialists and settlers to establish their rule over Indigenous peoples, at the same time I focused my enquiry more narrowly to consider sovereignty in the intense constitutional politics that dominated Canadian politics for the better part of three decades. Canada’s constitutional struggles were triggered by the rise of a sovereignist movement in Quebec. When the Parti Québécois was elected to power in Quebec in 1976 with a mandate to separate Quebec from Canada, it appeared to many English Canadians that the only way to prevent the break-up of their country was for Canadians

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to adopt a new Constitution. Canadians had come to believe that the people were sovereign. This meant that only approval of a new Constitution in a popular referendum could make it legitimate. That was the context for my 1991 presidential address to the Canadian Political Science Association in which I considered whether Canadians could act as a single sovereign people. That address led to the publication of a book entitled Constitutional Odyssey: Can Canadians Become a Sovereign People?1 My answer was that Canadians, as a sovereign people, could act negatively, as they did in 1992 when the Charlottetown Accord, a pot pouris of constitutional amendments drafted by federal, provincial, and Indigenous leaders, was rejected by a majority in a country-wide vote. But they were not a single people that could act positively. French Canadians, Indigenous people, and English-speaking Canadians had never come together as a single people agreeing to be bound by a majority. For a large majority of French-speaking Quebeckers and even larger majorities of Canada’s Indigenous peoples, their national identity was based on their historic nations and communities. Many Québécois and most Indigenous people were happy to continue to be citizens of Canada, but not if they had to surrender their primary allegiance to their historic communities and be subject to the will of the Canadian majority. That kind of national unity, which so many Canadians desire, could be achieved only through force, not by consent. Yet the country did not fly apart. Canada continued to function effectively as a sovereign state despite diversity that went beyond multiculturalism to multinationalism. The next stage in my quest for an understanding of sovereignty came with my second odyssey book, Canada’s Odyssey: A Country Based on Incomplete Conquests, published in 2017.2 This odyssey book aimed at identifying what made Canada a distinctive country among the world’s nation states. The argument of the book is summed up in its subtitle: Canada’s distinctiveness stems from the ongoing relationship of its three foundational pillars – Indigenous Canada, French Canada, and English-speaking Canada. For over two centuries the English-speaking pillar, by far the largest and the last to arrive, aimed to eliminate the other two by policies of

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assimilation. But French Canada and Canada’s Indigenous peoples showed great resilience in retaining their identity. The Englishspeaking majority never finished the “conquests” and by the end of the twentieth century had come to an accommodation with the “nations within.” Canada had become a stable multinational country that continued to function effectively as a sovereign nation state. I concluded this second odyssey book by suggesting that Canada might have stumbled its way to becoming a political community that may offer more useful guidance for humankind than the tidy model of the single-nation sovereign state: “As an example of how diverse peoples can live together in freedom and peace, this loose, never settled alliance of peoples called Canada could replace empire and nation-state as the most attractive model for the twenty-first century.”3 In this book I have endeavoured to apply to the world what I have learned about sovereignty in writing my two odyssey books. In doing so, I move from the specifics of the Canadian experience to a more general theory of sovereignty. The core of the understanding I have come to is not simply that sovereignty is a claim, but a claim with four dimensions as set out in the opening chapter of this book. The claim is made by governments or peoples and is a claim to be the exclusive legitimate authority over a territory and the people who inhabit it. The claim, to be effective, must be recognized by most of the world outside the sovereign state and most of the people inside it. A powerful government might be effective in establishing its claim, in the sense that it can put down any challenge to its claim within the territory and scare off any challenge to its claim from the outside. But such a claim may lack legitimacy. Legitimacy comes from ethical judgment, and might does not make right. Internal and external challengers to the legitimacy of a sovereign claim may lack the strength or the will to resist a claimant of sovereignty but have right on their side in the sense that they appraise the sovereignty claim as one that violates the fundamental human rights of those on which it is imposed. My historical account of the sovereignty claim traces its origins to Europeans in the early Middle Ages attributing all legitimate power to God’s earthly agents, then in the sixteenth and

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seventeenth centuries to the state and its monarchical ruler, and finally, in the age of democracy, towards the end of the eighteenth century to the people. After that, the people are never supplanted as the source of legitimate governing power. The most autocratic of rulers will claim their mandate comes from the people. When European states extended their concept of sovereignty to the world but denied it to most non-European peoples because in European eyes they were uncivilized or their governing regimes did not have the structure of European states, in effect they were denying these non-Europeans the right to govern themselves. The ending of that denial did not begin until the founding of the United Nations and the process of decolonization the UN initiated after the end of World War II. Between then and now, membership of the United Nations has increased from the original 50 founding states to 193 sovereign nation states. UN recognition means the sovereignty claimed by the governments of these 193 states is effective externally and in most cases internally. The main shortfall in this process of global decolonization has been the continued colonization of Indigenous peoples within sovereign nation states. These peoples, to quote the UN’s working definition of Indigenous communities and nations, “are those which, having an historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of societies now prevailing in those territories or parts of them.”4 Twenty-five years of Indigenous diplomacy and lobbying at the UN finally paid off in 2007 when the Declaration on the Rights of Indigenous Peoples was adopted by the General Assembly of the United Nations with 144 member states supporting the declaration. Unfortunately, it has become apparent that many of those states, especially in Latin America and Asia, do not take their support for the UN declaration seriously. Even in my own country, where Justin Trudeau’s Liberal Government claims to support it unconditionally, federal and provincial governments back away from honouring the declaration when recognizing Indigenous ownership of lands stands in the way of a major resource development. The key sticking point is sovereignty. Settler governments and the democratic electorates to

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which they are accountable are not ready to give up their claim to sovereignty over Indigenous peoples and their lands. The antidote to this angst about sovereignty, as I have argued throughout the book, is the federal idea of combining self-rule with shared rule. In federal sovereign states the right to exercise the governmental powers of the state is shared between a central government and the governments of autonomous local units on agreed-upon terms that cannot be unilaterally changed by either party. The parties to the federal sharing of sovereign state powers are not in a hierarchical relationship with the central government having power over the local units. In that sense the federal relationship is a relationship among equals. That is the kind of relationship that Indigenous peoples now seek to have within federal sovereign states. Indigenous peoples who wish to exercise the right to self-determination (which article 3 of the UN declaration states is their right) are not seeking to secede from the sovereign state in which they find themselves. Their principal aspiration is to make and enforce their own laws on matters of vital concern to them and exercise their responsibility for their land and all the life it sustains. They also wish to continue and to strengthen their participation in the governance of the large country in which their territories are located on those matters on which they share a common interest with the rest of the population. Instead of dwelling on the negative possibility that such a relationship might amount to giving Native peoples a veto over what non-Natives might want to do with land and resources, it is better to consider the positive nature of a true sharing relationship. Marriage, for instance, is a positive commitment of two partners to share, but we lose sight of the positive goodness of that sharing if we describe it as one partner being able to veto the other. Today sovereignty is experiencing a resurgence of popular support. People in relatively affluent states fear that the flood of immigrants trying to enter their countries threatens their prosperity and their control over who can be their neighbours. Populist politicians play on those fears. Sovereignty angst is also raised by nation state governments’ apparent inability to protect their citizens’ privacy

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or security from the giant global corporations that control the means of communication on which most of us have come to rely. And it is disturbing that the fiscal policies of sovereign states are restricted by their richest citizens’ ability to shelter their wealth in foreign tax havens. Women in the Me Too movement talk about asserting sovereignty over their bodies, and poets talk about the sovereignty of the soul. At the personal level, there is anxiety about being able to protect what is vital to us from the alien forces battering the borders of our bodies and souls. It seems like we need more sovereignty, not less. The irony is that this resurgence in the popularity of the sovereignty claim is occurring at a time when homo sapiens is becoming painfully aware of the incapacity of sovereign states to deal effectively with the three greatest threats to our planet and our species – nuclear weapons, climate heating, and unprecedented human migration. The agreements made by sovereign nation states through the institutions and agencies of the United Nations are undoubtedly the best means we have for dealing with all three of these existential threats. It is equally clear that these co-operative endeavours cannot get the job done. Nuclear states continue to build their arsenals. The largest carbon-emitting states are nowhere near meeting the reduction targets that the science community has identified as necessary to avoid a grave crisis a few years from now. Anti-immigration politicians are doing too well in too many states. To even suggest where we should go from here is to risk being up a tree. I think we must consider how to move beyond a situation in which sovereign nation states are the world’s most powerful political agencies. We must revisit the possibility of countering the power of sovereign states with a powerful world government. This means revisiting a possibility that American leaders considered at Rollins College in Florida in 1946. This time it is crucial that we talk about world government organized on a federal basis, one in which sovereign nation states maintain their self-rule over most matters of importance to their citizens but at the same time join together to create a global government with its own independent authority to address grave issues of concern to all humankind.

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We are obviously a long way from anything close to the support needed around the world for the possibility of global federal government to even get serious consideration. Wikipedia tells us that today membership in world federalist groups numbers about fifty thousand people in fifteen countries. That is a small but promising base to build on. The world federalists I have met are some of the wisest and most intelligent people I know. Progress towards their goal may come piecemeal, in stages. The first step might be an independent world authority to carry out the elimination of nuclear weapons. To be effective, this global agency would have to be supported by the largest nuclear weapon states. So I end my book by expressing the hope that the next step in the biography of the sovereignty claim is the consummation of a global marriage between sovereignty and federalism that will enable homo sapiens to continue to enjoy sovereignty’s benefits while overcoming its dangers and inadequacies.

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Epilogue: Sovereignty and the Coronavirus Pandemic

When I submitted this book's final manuscript to the University of Toronto Press, the devastating effects of the coronavirus were beginning to be experienced and recognized in China. However, most of the rest of the world knew nothing about it at that time. Consequently, no mention was made of it where I discuss how the sovereignty claim has performed in response to the three existential threats facing our species and our planet: nuclear war, climate warming, and mass migration. This epilogue is a slight remedy for the book's failure to discuss what is surely a fourth existential threat to humanity, if not to all life on earth. All that I aim to do in this brief discussion of the coronavirus and the COVID-19 disease, which is spreading through the world, is to consider how my theory of sovereignty might apply to these circumstances. I will do this by discussing the benefits of sovereignty and its limitations in effectively dealing with a worldwide pandemic. I must stress that, like everyone else, with respect to the spread of the virus I truly do not know what lies ahead. I offer what follows as an exercise in applying my thinking about sovereignty to the pandemic circumstances the world was experiencing in late March 2020. On the benefit side, one thing is already very clear – the capacity of sovereign states to control their territorial borders has enabled them to prevent the number of infected people in their countries from growing as fast as it might have done without these border controls. Most states have banned all foreigners who are not

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engaged in essential services from entering their country, while at least for a short period allowing their own citizens to return home. Of course, this sovereign control has its downside too when a country with huge manufacturing capability led by a xenophobic leader such as Donald Trump bans the export of urgently needed medical supplies. The promulgation of government policy on what people must do to reduce the risk of spreading the disease, and the compliance of citizens with that policy, show the state's effectiveness in exercising its sovereign claim to a monopoly of legitimate governmental power over its territory and all people residing in it. But there are limits to this effectiveness. The division of governmental power in sovereign federal states limits the power of central governments, even with the exercise of emergency powers, to regulate all the aspects of human activity that need to be controlled to minimize the spread of the deadly virus. In the context of coping with a pandemic, federalism – which up to now has been a hero in this book, taking the absolutism out of the sovereignty claim – appears to have more of a negative effect. In my own country, Canada, some provinces have been much more rigorous than others in curtailing disease-spreading activities and events. Because the virus does not respect provincial borders, Canadians are forced to live with the policy of the provinces with the slackest level of protective measures. On the other hand, south of the border in the United States, the adoption by the states of California and Illinois of a total lockdown, keeping all people in their homes except for those performing essential services, has encouraged other states to do the same thing. This has helped to offset President Trump's initial approach of minimizing the coronavirus threat to the American people. As well, the progress of Spain, a highly federal country, in achieving a total lockdown of the country indicates that the negative potential of federalism in dealing with a pandemic can be overcome. Two other conditions are more serious than federalism in limiting the effectiveness of sovereign states in dealing with a pandemic. One is a national government that fails to play a leadership role, either because it is wobbly, lacking the political coherence and

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decision-making capacity necessary for effective decision-making, or because too much power is concentrated in an egotistic head of government who does not heed the advice of health experts. Iran, which has experienced one of the highest rates of infection, would seem to exemplify the first. Brazil and the United States are the leading examples of the second: countries in which populist leaders with no respect for science are bad medicine for combating a pandemic. The other condition is poverty. Thomas Homer-Dixon reports that in the entire African continent where 1.2 billion people live there are only two labs for testing to see if people are carrying the coronavirus. The World Health Organization (WHO) has been sending testing kits to dozens of African countries.1 For countries still struggling to overcome the damage inflicted on them by Western imperialism, international recognition of their sovereignty has not brought with it the economic well-being enjoyed in the “developed” world, consequently hampering their capacity to deal with the pandemic. Similarly, Indigenous peoples in relatively affluent “developed” countries, because of their remoteness and the negative effects of past discriminatory health policies, require more medical assistance from the state than it provides for mainstream society. The government of my own country, Canada, has recognized that need. It is interesting to note that the governing authorities of two political communities that have not been recognized as having sovereign power over their territory and people, Palestine and Taiwan, are having considerable success in controlling entry to their territories and dealing with the pandemic. The Palestinian Authority and Israel have set up a joint headquarters to deal with the coronavirus. Ibrahim Milhem, a Palestinian spokesman, told reporters in Ramallah that “our shared borders and relations do not leave room for hesitation over the need to take severe measures and cooperate on the highest levels to prevent the spread of the virus.”2 No such agreement has been made with Hamas. Bassem Nain, a senior Hamas official and former health minister, reported in early March that there were no confirmed cases of COVID-19 among Gaza's estimated two million residents. And though there is no

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ceasefire agreement between Hamas and Israel, there have been no new flare-ups in over a month. The Israelis and Gazans are more concerned with fighting the virus than fighting each other. As for Taiwan, the impact of the virus on it has been much more moderate than in many neighbouring countries. Taiwan's National Health Command is effectively enforcing measures to control the spread of the disease, including early screening of flights from China. China has not challenged Taiwan's efforts to control its borders. At first, sovereign states relied mostly on “soft power” to control the spread of the coronavirus, instead of using the “hard power” of punishing those who do not comply with the physical distancing and other actions called for by government policy. Spain is an exception: it enforces its lockdown, stay-at-home orders by fining offenders. (Imprisonment would risk escalating the incidence of COVID-19 in prisons.) Elsewhere, including those lockdown states in the United States, authorities have been counting on people to comply voluntarily with government policy. The high level of voluntary compliance suggests that, in the context of a pandemic, Thomas Hobbes's view of human nature is correct – self-preservation trumps all other values. However, increasing incidents of non-compliance are prompting governmental authorities, including those of provinces and states in federations, to introduce punitive measures such as heavy fines. A pandemic results in an economic crisis as well as a health crisis. The physical distancing required to reduce the spread of the virus, to be effective, requires the shutting down of many places of employment and production in both the private and public sectors – theatres, arenas, shops, restaurants, factories, schools, day cares, airports, tourism, and many other social and economic activities that are not essential to fighting the disease. The phenomenon of this reduction of production and consumption frightens investors, and their bearish behaviour accelerates the decline of countries' GNPs. Some sovereign states are vigorously launching countermeasures to slow the economic crash. The Economist magazine in its mid-March lead article, “The Right Medicine for the World Economy,” noted a bevy of measures taken by states that go well beyond simply lowering interest rates to stimulate investment.3

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These measures involve direct intervention by governments in economic activity, including loaning money to those banks that will in turn loan money to companies hard hit by the virus. Such measures also include advancing loans or direct grants to firms to prevent lay-offs, funding parents who must stay home to look after children, easing access to unemployment insurance, and postponing or cutting taxation. The use of such economic medicine varies across the globe. Reluctance to use it stems not from sovereignty but from poor political leadership, and in some cases an ideological addiction to laisser-faire economics. Claiming sovereignty over territory and people has not had any major harmful effects in addressing the pandemic crisis so far. However, the pandemic does illuminate the limits of sovereign nation states in dealing with the challenge, and the need for transnational leadership. It was the World Health Organization (WHO) that declared the spread of the coronavirus was a global pandemic.4 No single nation state or alliance of states could have made such a declaration with the credibility of the WHO. And the WHO declaration made a difference. It firmed up support for governments that already were taking the coronavirus epidemic seriously and strengthened critics of those governments that fail to acknowledge the gravity of the situation. Between December 2019 and 12 March 2020 the number of persons with COVIC-19 increased to 125,000 in 114 countries. We can only wonder how much better off we might be had the WHO made its declaration sooner. Still, there can be no doubt that since 12 March, in many parts of the world, there has been a step-up in governmental efforts to promote physical distancing and an increase in the willingness of people to comply with those requests. Thomas Homer-Dixon suggests that “the pandemic could help catalyze an urgently needed tipping event in humanity's collective moral values ... It could remind us of our common fate on a small crowded planet with dwindling resources and fraying natural systems.”5 If Homer-Dixon is right, a hidden benefit of the pandemic may be that it is building a foundation of worldwide support for a governing authority with global reach, more powerful than the United Nations and its agencies. We can see now, at

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this point in the pandemic, that some of the measures needed to deal effectively and speedily with the virus and the disease it is spreading would be done better by a global authority. Consider just one example – the direction of manufacturers of automobiles and fashion clothing to shift to the production of ventilators and masks. The Canadian and United Kingdom governments are both considering doing this. Even if they do take this measure, consider how much more effective and just this would be if done globally. The handful of countries that may now do it on their own will fall far short of providing the quantities of the essential goods needed, and their manufacturers will be severely disadvantaged in competing with firms elsewhere in the world that are not limited in the non-essential goods they produce. The sovereign nation states that established and collectively control the UN have not given its governing bodies or its agencies a mandate to direct worldwide production to manufacture what is needed to reduce deaths resulting from COVID-19. It is possible that the urgency of the pandemic will convince the governments of enough countries, including most of the permanent members of the UN's Security Council, to form a government with global reach that has at the very least emergency powers it can exercise independently through its own decision-making and with its own resources. This would be the first step in building the world federation for whose necessity I argued in the final chapter of this book. Such a federation is needed to overcome the limitations of any international organizations that now exist to effectively address existential challenges to the survival of humanity and all living things on our planet. Initially, not all countries in the world would belong to it and the jurisdiction of its central government would be very limited. It would be an extremely decentralized federation, with most government power remaining with its member states. Steven Soderbergh's 2011 movie Contagion, on the social upheaval resulting from a pandemic, points to a way of electing the governing body of the central government of a world federation. At the point in Contagion when medical researchers come up with a vaccine that will counter the deadly virus and have to face the tricky question of who, among all those who need it, will get

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the vaccine first, they use a system that I will call “temporalism.” A temporalist system means that the priority order would be determined by drawing a day of the year from a tub of bouncing balls. If 19 July was drawn first, all of those born on that day would be the first to get the vaccine, and so on. A temporalist system could be used to create the constituencies for the elected assembly of a world federation's central government. Each of us would belong to a worldwide constituency composed of persons with the same birthdate as our own. A representative system such as this would avoid the parochialism and self-interest that a geographic representative system engenders. Worldwide Internet connections would enable members of each constituency to select their representatives and discuss policy issues facing the globe in terms of their common interests. I think that after that last paragraph, a lot of readers will put me up in a tree – as if the paragraph before it wasn't bad enough. But I have never been impressed by those who are confident in their knowledge of the future. Let me close by urging readers to be hopeful enough about the future to think carefully about what needs to be done to avoid disaster.

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Notes

1. Confronting the Sovereignty Claim 1 For my detailed account of the treaties, see Peter H. Russell, Canada’s Odyssey: A Country Based on Incomplete Conquests (Toronto: University of Toronto Press, 2017), pp. 182–205. 2 I have given a fuller account of legal magic in Recognizing Aboriginal Title: The Mabo Case and Indigenous Resistance to English Settler Colonialism (Toronto: University of Toronto Press, 2006), chap. 2. 3 The declaration can be found in Melville Watkins, ed., The Dene Nation: The Colony Within (Toronto: University of Toronto Press, 1977), pp. 3–4. 4 My evidence is published in “The Dene Nation and Confederation” in Watkins, The Dene Nation, pp. 163–74. 5 Deh Cho First Nations Interim Resource Development Agreement/ Duh Gogha Ndeh Ts;Eh Saamba Holeh Ts’ehk’eh Eleh Seegots’eleh, Fort Providence, NWT, 17 April 2003, https://dehcho.org/docs/Interim -Resource-Development-Agreement.pdf. 6 United Nations Charter, preamble, https://www.un.org/en/sections /un-charter/un-charter-full-text/. 7 Valorie Epps, International Law, 4th ed. (Durham, NC: Carolina Academic Press, 2009), p. 9. 8 See Larry Siedentop, Inventing the Individual: The Origins of Western Liberalism (Toronto: Penguin Random House, 2014), 180–1. 9 Ibid., pp. 346–7. 10 F.H. Hinsley, Sovereignty (London: C.A. Watts, 1966), p. 53. 11 Ibid., p. 149.

148  Notes to pages 19–31 2. Emperor and Pope Fight for It 1 T.F. Tout, The Empire and the Papacy, 918–1273, Period II (London: Rivington’s, 1898), p. 128. 2 Ibid., p. 129. 3 David Armitage, The Ideological Origins of the British Empire (Cambridge: Cambridge University Press, 2000), p. 30. 4 See Averil Cameron, Christianity and the Rhetoric of Empire (Berkeley: University of California Press, 1991). 5 Quoted in Larry Siedentop, Inventing the Individual: The Origins of Western Liberalism (Toronto: Penguin Random House, 2014), p. 175. 6 Tout, The Empire and the Papacy, p. 131. 7 Arthur Lovejoy, The Great Chain of Being: A Study in the History of an Idea (Cambridge, MA: Harvard University Press, 1964). 3. Westphalia: The State Gets It 1 Charles Taylor, The Secular Age (Cambridge MA: Harvard University Press, 2007). 2 Michael Clodfelter, Warfare and Armed Conflicts: A Statistical Encyclopaedia of Casualty and other Figures, 1492–2000, 2nd ed. (Jefferson, NC: McFarlane, 2002). 3 Anna Jurkevis, “Westphalia and the Hidden Tradition of Contested Territory,” paper given at the Annual Meeting of the Canadian Political Science Association, Vancouver, 4 June 2019. 4 Hendrik Spruyt, The Sovereign State and Its Competitors: An Analysis of Systems Change (Princeton: Princeton University Press, 1994). 5 Jean Bodin, Introduction to Six Books of the Commonwealth, trans. and selected by M.J. Tooley (Oxford: Basil Blackwell, 1960). 6 Ibid., p. 25. 7 Ibid., 28. 8 Ibid., 32. 9 Ibid., 28. 10 Bertrand de Jouvenal, Sovereignty: An Inquiry into the Political Good, trans. J.F. Huntington (Chicago: University of Chicago Press, 1957), p. 6. 11 Bodin, Six Books of the Commonwealth, p. 11. 12 See Dieter Grim, Sovereignty (New York: Columbia University Press, 2015), pp. 24–5. 13 Hobbes’s Leviathan, reprinted from 1651 edition (Oxford: Clarendon, 1947), p. 110.

Notes to pages 31–42  149 1 4 Ibid., p. 96. 15 Ibid., P. 97. 16 Thomas Hobbes, The Elements of Law, ed. T.F. Tonnies (London: Frank Cass, 1969), II, 2, 9. 17 Ibid., p. 132. 18 See Irving M. Zeitlin, Rulers and Ruled: An introduction to Classical Political Theory from Plato to the Federalists (Toronto: University of Toronto Press, 1997), p. 93. 19 Larry Siedentop, Inventing the Individual: The Origins of Western Liberalism (Toronto: Penguin Random House, 2014), p. 346. 20 Jouvenal, Sovereignty, p. 186. 4. We the People Become Sovereign 1 Crane Brinton, The Anatomy of Revolution (New York: Random House, 1965), p.3 0. 2 André Marrois, A History of France, trans. Henry L. Binsse (London: Jonathan Cape, 1949), p. 271. 3 Montesquieu’s De l’esprit des lois was published in 1748. 4 Marrois, History of France, pp. 264–5. 5 Brinton, Anatomy of Revolution, p. 133. 6 F.A.M. Mignet, History of the French Revolution from 1789 to 1814, Everyman’s Library ed. (London: J.M. Dent and Sons, 1966), p. 26. 7 Quoted in Kevin Olson, Imagining Sovereignty: The Power of the People and Other Myths of the Modern Age (Cambridge: Cambridge University Press, 2016), p. 83. 8 Marrois, History of France, p. 276. 9 “Constitution” here is written with an initial upper case, connoting a single document founding a new regime. “Constitution” with a lowercase “c” refers to a constitutional system that, like the United Kingdom’s, may not have a founding document referred to as “the Constitution.” 10 Benedict Anderson, Imagined Communities: Reflections on the Origins and Spread of Nationalism (London: Verso, 1983). 11 Olson, Imagining Sovereignty, p. 8. 12 Yuval Noah Harari, Sapiens: A Brief History of Humankind (Toronto: Penguin Random House, 2014), p. 32. 13 See R.R. Palmer, The Age of the Democratic Revolution (Princeton: Princeton University Press, 1959). 14 Edmund S. Morgan, Inventing the People: The Rise of Popular Sovereignty in England and America (New York: W.W. Norton, 1988), p. 56.

150  Notes to pages 42–52 15 Don M. Wolfe, ed., Leveller Manifestoes of the Puritan Revolution (New York: Thomas Nelson and Sons, 1944). 16 Morgan, Inventing the People, p. 118. 17 A.V. Dicey, Introduction to the Study of the Law of the Constitution (London: Macmillan, 1885), pp. 39–40. 18 Martin Loughlin and Stephen Tierney, “The Shibboleth of Sovereignty,” Modern Law Review 81, no. 6 (2018): pp. 989–1016, https://doi.org /10.1111/1468-2230.12376. 19 Morgan, Inventing the People, p. 169. 20 Harold Innis, The Bias of Communication (Toronto: University of Toronto Press, 1951), chap. 1. 21 Marshall McLuhan, Understanding Media: The Extension of Man (Toronto: University of Toronto Press, 1964), chap. 18. 22 Thomas P. Pearson, Introduction to John Locke, Second Treatise of Government, Library of Liberal Arts ed. (New York: Columbia University Press, 1952), p. x. 23 John Locke, Second Treatise of Government, Library of Liberal Arts ed. (New York: Columbia University Press, 1952), sec. 101. 24 Ibid., sec. 95. 25 Ibid., sec. 119. 26 Ibid., sec. 173. 27 Ibid., sec. 28. 28 Ibid., sec. 222. 29 Ibid., sec. 107. 30 Peter H. Russell, “Toward a General Theory of Judicial Independence,” in Judicial Independence in the Age of Democracy, ed. Peter H. Russell and David M. O’Brien (Charlottesville: University Press of Virginia, 2001), p. 9. 31 Robert Stevens, “Judicial Independence in England: A Loss of Innocence,” in Russell and O’Brien, Judicial Independence, p. 159. 32 Quoted in Ian Davidson, Voltaire in Exile (New York: Grove, 2004), p. 180. 33 Charles Frankel, Introduction to Jean Jacques Rousseau, The Social Contract (New York: Hafner, 1951), p. xvi. 34 Jean Jacques Rousseau, The Social Contract (New York: Hafner, 1951), p. 15, italics in original. 35 Ibid., p. 18. 36 Ibid., p. 124. 37 Brinton, Anatomy of Revolution, p. 150. 38 Marrois, History of France, p. 293 39 Ibid., p. 298. 40 Olson, Imaging Sovereignty, p. 6.

Notes to pages 55–62  151 5. Sovereignty as an Instrument of European Imperialism 1 There are many accounts of this battle; I have drawn on those in Henry Dodwell, Dupleix and Clive: The Beginning of Empire (London: Methuen, 1920); Mark Bence-Jones, Clive of India (London: Constable, 1974); Richard Gott, Britain’s Empire: Resistance, Repression and Revolt (London: Verso, 2011); and T.O. Lloyd, The British Empire, 1558–1995, 2nd ed. (Oxford: Oxford University Press, 1996). 2 David Armitage, The Ideological Origins of the British Empire (Cambridge: Cambridge University Press, 2000), p. 3. 3 Yuval Noah Harari, Sapiens: A Brief History of Humankind (Toronto: Penguin Random House, 2014), chap. 15. 4 See Fred Anderson, The War That Made America: A Short History of the French and Indian War (London: Penguin Books, 2005). 5 Jennifer Pitts, “Political Theory of Empire and Imperialism,” Annual Review of Political Science 13 (2010): 224, https://doi.org/10.1146 /annurev.polisci.051508.214538. 6 See Sarah Pritchard, ed., Indigenous Peoples, the United Nations and Human Rights (London: Zed Books, 1998). 7 James (Sa’ke’j) Youngblood Henderson, Indigenous Diplomacy and the Rights of Peoples: Achieving UN Recognition (Saskatoon: Purich, 2008), p. 24. 8 Jennifer Pitts, A Turn to Empire: The Rise of Imperial Liberalism in Britain and France (Princeton: Princeton University Press, 2005), p. 165. 9 Ibid. 10 Robert Williams, The American Indian in Western Legal Thought (New York: Oxford University Press, 1990), pp. 78–81. 11 For a summary see Lewis Hanke, Aristotle and the American Indians: A Study in Race Prejudice in the Modern World (Bloomington: Indiana University Press, 1959), pp. 12–13. 12 For a summary of the lectures see Williams, The American Indian, pp. 96–103. 13 Ibid., p. 98. 14 Henry Reynolds, The Other Side of the Frontier: Aboriginal Resistance to the European Invasion of Australia (Ringwood, Australia: Penguin Books), p. 31. 15 Lewis Hanke, The Spanish Struggle for Justice in the Conquest of America (Philadelphia: University of Pennsylvania Press, 1949), p. 21. 16 Quoted in ibid., p. 125. 17 James (Sa’ke’j) Youngblood Henderson, The Mi’kmaw Concordet (Halifax: Fernwood, 1997), p. 27.

152  Notes to pages 63–74 18 Peter H. Russell, Recognizing Aboriginal Title: The Mabo Case and Indigenous Resistance to English-Settler Colonialism (Toronto: University of Toronto Press, 2005), p. 37. 19 Emmerich de Vattel, The Law of Nations, or, Principles of the Law of Nature Applied to the Conduct and Affairs of Nations and Sovereigns, 3 vols. (Washington, DC: Carnegie Institute, [1760]). 20 Russell, Recognizing Aboriginal Title, chap. 8. 21 The declaration can be easily accessed online, for example at https:// www.un.org/development/desa/indigenouspeoples/wp-content /uploads/sites/19/2018/11/UNDRIP_E_web.pdf. For a print copy see James (Sa’ke’j) Youngblood Henderson, Indigenous Diplomacy, Appendix 1. 22 Pitts, “Political Theory of Empire and Imperialism,” p. 14. 23 Edward Said, Culture and Imperialism (New York: Vintage Books, 1994), p. 10. 24 John Stuart Mill, Considerations on Representative Government, in John Stuart Mill on Liberty and Other Essays, ed. John Gray (Oxford: Oxford University Press, 1991), p. 453. 25 Ibid., p. 454. 26 For an account of Constant’s writings, see Pitts, A Turn to Empire, 171–85. 27 Quoted in ibid., p. 181. 28 Quoted in ibid., p. 210. 29 Jacques Barzun, Race: A Study in Superstition (New York: Harper and Row, 1937), p. 16. 6. Settler Sovereignty 1 Campbell v. Hall, 1 Cowp. (1774). 2 Quoted in Peter H. Russell, Canada’s Odyssey: A Country Based on Incomplete Conquests (Toronto: University of Toronto Press, 2017), p. 34. 3 Lisa Ford, Settler Sovereignty: Jurisdiction and Indigenous People in America and Australia, 1788–1836 (Cambridge, MA: Harvard University Press, 2010), p. 21. 4 See Robert S. Allen, His Majesty’s Indian Allies: British Indian Policy in Defence of Canada, 1774–1835 (Toronto: Dundurn, 1992). 5 See R. David Edmunds, Tecumseh and the Search for Indian Leadership (New York: Pearson/Longman, 2007). 6 Ford, Settler Sovereignty, chap. 8. 7 Ronald Wright, Stolen Continents: The “New World” through Indian Eyes (New York: Penguin Books, 1993), pp. 220–1. 8 Russell, Canada’s Odyssey, p. 89.

Notes to pages 75–83  153 9 Constitution Act, 1867, section 91 (24). (Up to 1982, the founding Constitution was titled the British North America Act, 1867.) 10 For a brief but authoritative account, see Royal Commission on Aboriginal Peoples, Report, vol. 1 (Ottawa: Canada Communication Group, 1995), pp. 255–332. 11 Michael King, Nga Iwi O Te Motu: A Thousand Years of Maori History (Auckland: Reed Books, 1997). 12 Claudia Orange, The Treaty of Waitangi (Wellington: Allen and Unwin, 1997). The English and Maori texts of the treaty are included in Appendix 1 of this book. 13 Keith Sinclair, History of New Zealand (Auckland: Oxford University Press, 1961). 14 Carol Archie, Maori Sovereignty: The Pakeha Perspective (Auckland: Hodder Moa Becker, 1995). 15 Orange, The Treaty of Waitangi, pp. 179–81. 16 See Russell, Recognizing Aboriginal Title, pp. 117–18. 17 Manning Clark, A Short History of Australia (Melbourne: Melbourne University Press, 1993). 18 Ibid., p. 80. 19 Meaghan Wilson Anastasios (with Sam Neill), The Pacific in the Wake of Captain Cook (Sydney: Harper Collins, 2018), p. 174. 20 David Day, Claiming a Continent (Sydney: Angus and Robertson, 1996), p. 111. 21 Ford, Settler Sovereignty, p. 202. 22 Ibid., p. 198. 23 See Russell, Recognizing Aboriginal Title: The Mabo Case and Indigenous Resistance to English-Settler Colonialism; see especially chap. 1. 24 Sir J.R. Seeley, The Expansion of England (London: Macmillan, 1906), pp. 55–6. 25 (1889) App. Cas. 286 at 291. 26 Constitution of the Commonwealth of Australia, sec. 51 (xxxvi). 27 Ibid., sec. 127. 28 The working definition of “Indigenous” used at the UN is as follows: “Indigenous communities and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of societies now prevailing in those territories or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories and their ethnic identity, as the basis of their continued

154  Notes to pages 83–91 existence as peoples, in accordance with their own cultural patterns, institutions and legal systems.” See Catherine J. Irons, “Indigenous Peoples and Self-Determination: Challenging State Sovereignty,” 24 Case Western Reserve Journal of International Law (1992), p. 199. 29 Kent McNeil, “Sovereignty and Indigenous Peoples in North America,” HeinOnline, 22 U.C. Davis Journal of International Law and Policy 81 (2016), https://heinonline.org/HOL/LandingPage?handle=hein. journals/ucdl22&div=10&id=&page=. McNeil calls this de facto sovereignty but not de jure sovereignty; but it is difficult to understand why it would not be legitimate and lawful according to the Indigenous nation’s law. 7. Federalism Takes the Sting Out of Sovereignty 1 Liquidators of the Maritime Bank of Canada v. Receiver General of New Brunswick, (1892) A.C. 437, at 441. 2 A.V. Dicey, Introduction to the Study of the Law of the Constitution, 10th ed. (London: Macmillan, 1961), p. 143. 3 P.B. Waite, ed., The Confederation Debates in the Province of Canada (Toronto: McClelland and Stewart, 1961), p. 156. 4 See Peter H. Russell, Canada’s Odyssey: A Country Based on Incomplete Conquests (Toronto: University of Toronto Press, 2017), chap. 9. 5 See Ronald L. Watts, Comparing Federal Systems, 2nd ed. (Kingston /Montreal: McGill-Queens University Press, 1999), pp. 6–14. 6 For an account, see Oscar Handlin, The History of the United States, vol. 1 (New York: Holt, Rinehart and Winston, 1967), p. 279. 7 Watts, Comparing Federal Systems, p. 11. 8 The Economist, “A New Leyen-up,” 14 September 2019, p. 51. 9 Daniel Elazar, Exploring Federalism (Tuscaloosa: University of Alabama Press, 1987), p. 12. 10 Watts, Comparing Federal Systems, p. 2. 11 Cynthia Feathers and Susan Feathers, “Franklin and the Iroquois Foundation of the Constitution,” last modified 5 January 2007, www .upenn.edu/gazette/0107/gaz09.html. 12 F.S. Carney, ed., The Politics of Johannes Althusius (London: Eyre and Spottiswoode, 1965). 13 Watts, Comparing Federal Systems, p. 10. 14 Quoted in Michael Burgess and Alain-G. Gagnon, eds., Comparative Federalism and Federation: Competing Traditions and Future Directions (London: Harvester Wheatsheaf, 1993), p. 193.

Notes to pages 91–102  155 15 Katherine Walker, “The Duty to Consult: Creating Political Space for First Nations?” in Back to Blakeney: Revitalizing the Democratic State, ed. David McGrane, John Whyte, Roy Romanow, and Russell Isinger (Regina: University of Regina Press, 2019), p. 171. 16 For a collection of Aboriginal perspectives on self-government and sovereignty, see Royal Commission on Aboriginal Peoples, Report, vol. 2, pt. 1 (Ottawa: Canada Communication Group, 1995), pp. 108–15. 17 James (Sa’ke’j) Youngblood Henderson, Indigenous Diplomacy and the Rights of Peoples: Achieving UN Recognition (Saskatoon: Purich, 2008). 18 Tim Fontaine, “Canada Officially Adopts UN Declaration on Rights of Indigenous Peoples,” CBC, 10 May 2016, https://www.cbc.ca/news /indigenous/canada-adopting-implementing-un-rights-declaration -1.3575272. 19 Truth and Reconciliation Commission of Canada, Calls to Action, http:// trc.ca/assets/pdf/Calls_to_Action_English2.pdf, p. 5. 20 For a detailed account of the many ways in which Canada has failed to comply with the Truth and Reconciliation’s Calls for Action, see Katherine Graham and David Newhouse, eds., Sharing the Land, Sharing a Future (Winnipeg: University of Manitoba Press, forthcoming). 21 Glen Sean Coulthard, Red Skins, White Masks: Rejecting the Colonial Policy of Recognition (Minneapolis: University of Minnesota Press, 2014), p. 127. 22 Pamela Palmater, Indigenous Nationhood: Empowering Grass Roots Citizens (Winnipeg: Fernwood, 2015), p. 4. 8. Sovereignty Challenged Beyond and Within the State 1 There are many accounts of Rahel Mohammed’s story online. I have drawn heavily from Wikipedia’s, https://en.wikipedia.org/wiki/Rahaf _Mohammed (last modified 2 September 2020). 2 Mike Blanchfield, “Canada Grants Asylum to Saudi Woman Who Escaped to Thailand,” The Star, 11 January 2019, https://www.thestar .com/news/canada/2019/01/11/saudi-asylum-seeker-flying-to-canada -say-thai-police.html. 3 Quoted in James Anaya, Indigenous Peoples in International Law (New York: Oxford University Press, 1996), p. 60. 4 David Philpott, Revolutions in Sovereignty: How Ideas Shaped International Relations (Princeton: Princeton University Press, 2001). 5 Wilmer Franke, The Indigenous Voice in World Politics (Newbury Park: Sage, 1993), p. 24.

156  Notes to pages 102-14 6 United Nations, Human Rights: A Compilation of International Instruments (New York: United Nations, 1978), pp. 1–8. 7 Ibid., pp. 45–50. 8 Linda Camp Smith, “The International Human Rights Regime: Commitment and Compliance,” in The Institutions of Human Rights: Development and Practices, ed. Gordon DiGiacomo and Susan L. King (Toronto: University of Toronto Press, 2019), p. 1. 9 All of these are included in United Nations, Human Rights. 10 United Nations, Human Rights, pp. 16–17. 11 “Sandra Lovelace Nicholas,” Wikipedia, last modified 30 March 2020, https://en.wikipedia.org/wiki/Sandra_Lovelace_Nicholas. 12 Camp Smith, “The International Human Rights Regime,” p. 10. 13 George Roberts, “The Uganda-Tanzania War, the Fall of Amin, and the Failure of African Diplomacy, 1978–79,” in Politics and Violence in East Africa: The Struggle of Emerging States, ed. David M. Anderson and Oystein Rolanden (London: Routledge, 2017), pp. 154–71. 14 Quoted in Theresa Reinold, Sovereignty and the Responsibility to Protect: The Power of Norms and the Norms of the Powerful (London: Routledge, 2013), p. 62. 15 Ibid., p. 62. 16 Ibid., pp. 55–6. 17 Ibid., pp. 71–3. 18 Ibid., p. 73. 19 “List of United Nations Peacekeeping Missions,” Wikipedia, last modified 15 July 2020, https://en.wikipedia.org/wiki/List_of _United_Nations_peacekeeping_missions. 20 Bansetter Lee, “China’s Embrace of Globalization,” in Brandt, Loran, Rawski, and Thomas, eds., China’s Great Transformation, ed. Loren Brandt and Thomas G. Rawski (Cambridge: Cambridge University Press, 2008). 21 See for instance, Eric Reguly, “Chinese Overhaul of Greek Port Opens Gateway to Europe,” Globe and Mail, 8 July 2019, p. A1. 22 Joseph A. Camilleri and Jim Falk, The End of Sovereignty? The Politics of a Shrinking and Fragmenting World (Aldershot, UK: Edward Elgar, 1992), p. 113. 23 Ibid., 117. 24 Philip N. Howard, Pax Technica: How the Internet of Things May Set Us Free or Lock Us Up (New Haven: Yale University Press, 2015), p. 9. 25 James Griffith, The Great Firewall of China: How to Build and Control an Alternative Version of the Internet (London: Zed, 2019).

Notes to pages 115–24  157 26 Yascha Mounk, The People vs. Democracy: Why Our Freedom Is in Danger & How to Save It (Cambridge, MA: Harvard University Press, 2018). 27 Saskia Sassen, Losing Control? Sovereignty in an Age of Globalization (New York: Columbia University Press, 1996), p. 29. 9. Sovereign States and the UN’s Fatal Incapacities 1 Eric Schlosser, Command and Control: Nuclear Weapons, the Damascus Accident and the Illusion of Security (New York: Penguin Books, 2014), p. 74. 2 Metta Spencer, moderator and editor, “After the INF Treaty? A Video Discussion with Sergev Rogov, Theodore A. Postol, and Douglas Roche,” Peace Magazine, April-June 2019, p. 12. 3 Ibid. 4 Ibid., p. 11. 5 “Analysts: Failure to Renew 2010 START Treaty Could Trigger Global Nuke Arms Race,” Sputnik, 9 April 2019, https://sputniknews.com /analysis/201904091073943490-usa-russia-start-treaty-renewal/. 6 Quoted in Schlosser, Command and Control, p. 457. 7 See Daniel Ellsberg, The Doomsday Machine: Confessions of a Nuclear War Planner (New York: Bloomsbury, 2017). 8 Schlosser, Command and Control, p. 473. 9 Eric Regher and Douglas Roche, “Hypersonic Missiles Highlight the Need for Nuclear Disarmament,” Globe and Mail, 8 July 2019, p. A11. 10 Rachel Carson, Silent Spring (Boston: Houghlin and Mifflin, 1962). 11 Club of Rome, The Limits to Growth (Falls Church, VA: Potomac Associates, 1972). 12 World Commission on Environment and Development (Brundtland Commission), Our Common Future, United Nations General Assembly document A/42/427 (WCED, 1987). 13 “Intergovernmental Panel on Climate Change,” Wikipedia, last modified 1 September 2020, https://en.wikipedia.org/wiki/ Intergovernmental_Panel_on_Climate_Change. 14 “Kyoto Protocol,” Wikipedia, last modified 1 September 2020, https:// en.wikipedia.org/wiki/Kyoto_Protocol. 15 Ibid. 16 “Paris Agreement,” Wikipedia, last modified 31 August 2020, https:// en.wikipedia.org/wiki/Paris_Agreement. 17 “The Great Divide: Can States Slow Global Warming without Help from the Federal Government?” The Economist, 29 June 2019, pp. 21–2.

158  Notes to pages 124–33 18 Jonathan Watts, “We Have 12 Years to Limit Climate Change Catastrophe, Warns UN,” The Guardian, 8 October 2018, https://www .theguardian.com/environment/2018/oct/08/global -warming-must-not-exceed-15c-warns-landmark-un-report. 19 For an account of these changes, see Derek Paul, A Leap to an Ecological Economy (Montreal: Maison Hilton, 2017). 20 Christy Ferguson, “It’s Time to Act like Climate Change Really Is an Emergency,” Hill Times, 3 July 2019. 21 “Swedish Teen Climate Activist Rallies German Students,” France 24, 3 January 2019, https://www.france24.com/en/20190301-swedish-teen -climate-activist-rallies-german-students. 22 Michelle Zilio, “Report Calls for New Global Approach to Migration Crisis,” Globe and Mail, 24 January 2019. 23 Saskia Sassen, Losing Control?, p. 59. 24 Thomas Piketty, Capital in the Twenty-First Century (Cambridge, MA: Belknap, 2017). 25 Mount, The People vs. Democracy. 26 Ibid., p. 176. 27 Bret Stephens, “Immigration Policies Worse than Trump’s,” New York Times, weekend edition, 13–14 July 2019, p. 14. 28 Samantha Wright Allen, “Nothing in Migration Pact Tells Canada to ‘Open Borders, Says UN Refugee Agency Rep,” Hill Times, 12 December 2018, p. 22. 29 “Global Compact for Migration,” Wikipedia, last modified 2 June 2020, https://en.wikipedia.org/wiki/Global_Compact_for_Migration. 30 See Peter J. Hajnal, The G20: Evolution, Interrelationships, Documentation, 2nd ed. (New York: Routledge, 2019). 31 See Edgar Grande and Louis W. Pauly, Complex Sovereignty: Reconstituting Political Authority in the Twenty-first Century (Toronto: University of Toronto Press, 2005). Conclusion 1 Russell, Constitutional Odyssey: Can Canadians Become a Sovereign Nation? (Toronto: University of Toronto Press, 1992). A second edition was published after the defeat of Quebec’s 1996 secessionist referendum, and a third after the defeat of a Quebec separatist government in 2004. 2 Russell, Canada’s Odyssey: A Country Based on Incomplete Conquests (Toronto: University of Toronto Press, 2017). 3 Ibid., p. 19.

Notes to pages 134-43  159 4 Catherine Irons, “Indigenous Peoples and Self-Determination: Challenging State Sovereignty,” 24 Case Western Reserve Journal of International Law (1992), p. 199. Epilogue 1 Thomas Homer-Dixon, “Why the Coronavirus Represents a Global ‘Tipping Event,’” Globe and Mail, 7 March 2020, p. 1. 2 Quoted in Mark MacKinnon, “Middle East More Peaceful amid War on COVID-19,” Globe and Mail, 21 March 2020, p. A23. 3 The Economist, 7–13 March 2020. The article supporting its cover story is at p. 65 in this issue. 4 Jamey Keaton, “WHO Declares Coronavirus Outbreak Is Now a Pandemic,” Globe and Mail, 12 March 2020, p. A1. 5 Ibid., p. A7.

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Suggestions for Further Reading

Challenges to Sovereignty Camilleri, Joseph A., and Jim Falk. The End of Sovereignty: The Politics of a Shrinking and Fragmenting World. Aldershot, UK: Edward Elgar, 1992. Grande, Edgar, and Louis W. Pauly. Complex Sovereignty: Reconstituting Political Authority in the Twenty-First Century. Toronto: University of Toronto Press, 2005. Howard, Philip N. Pax Technica: How the Internet of Things May Set Us Free or Lock Us Up. New Haven: Yale University Press, 2015. Reinold, Theresa. Sovereignty and the Responsibility to Protect: The Power of Norms and the Norms of Power. London: Routledge, 2013. Sassen, Saskia. Losing Control? Sovereignty in an Age of Globalization. New York: Columbia University Press, 1996. Spruyt, Hendrik. The Sovereign State and Its Competitors: An Analysis of Systems Change. Princeton: Princeton University Press, 1994. European History and Imperialism Armitage, David. The Ideological Origins of the British Empire. Cambridge: Cambridge University Press, 2000. Bence-Jones, Mark. Clive of India. London: Constable, 1974. Gott, Richard. Britain's Empire: Resistance, Repression and Revolt. London: Verso, 2011. Lloyd, T.O. The British Empire, 1558–1995. 2nd ed. Oxford: Oxford University Press, 1996. Said, Edward. Culture and Imperialism. New York: Vintage Books, 1994. Tout, T.F. The Empire and the Papacy, 918–1273. London: Rivington's, 1898.

162  Suggestions for Further Reading Federalism Burgess, Michael, and Alan-G. Gagnon, eds. Comparative Federalism and Federation: Competing Traditions and Future Directions. London: Harvester Wheatsheaf, 1993. Carney, F.S., ed. The Politics of Johannes Althusius. London: Eyre and Spottiswoode, 1965. Elazar, Daniel. Exploring Federalism. Tuscaloosa: University of Alabama Press, 1987 Watts, Ronald L. Comparing Federal Systems. 2nd ed. Kingston/Montreal: McGill-Queen's University Press, 1992. Indigenous Peoples Anaya, James. Indigenous Peoples in International Law. New York: Oxford University Press, 1995. Archie, Carol. Maori Sovereignty: The Pakeha Perspective. Auckland: Hodder, Moa, Becker, 1995. Coulthard, Glen. Red Skins, White Masks. Minneapolis: University of Minnesota Press, 2014. Franke, Wilmer. The Indigenous Voice in World Affairs. Newbury Park: Sage, 1993. Henderson, James (Sa'ke'j) Youngblood. Indigenous Diplomacy and the Rights of Indigenous Peoples. Saskatoon: Purich, 2008. Nichols, Joshua Ben David. A Reconciliation without Recollection? An Investigation of the Foundations of Native Law in Canada. Toronto: University of Toronto Press, 2020. Palmeter, Pamela. Indigenous Nationhood: Empowering Grass Roots Citizens. Winnipeg: Fernwood, 2014. Williams, Robert. The American Indian in Western Legal Thought. Oxford: Oxford University Press, 1990. Popular Sovereignty Anderson, Benedict. Imagined Communities: Reflections on the Origins and Spread of Nationalism. London: Verso, 1983. Brinton, Crane. Anatomy of Revolution. New York: Random House, 1965. Olson, Kevin. Imagined Sovereignties: The Power of the People and Other Myths of the Modern Age. Cambridge: Cambridge University Press, 1959. Palmer, R.R. The Age of Democratic Revolution: A Political History of Europe and America. Princeton: Princeton University Press, 1959. Rousseau, Jean-Jacques. The Social Contract. New York, Hafner, 1951.

Suggestions for Further Reading  163 Settler Sovereignty Day, David. Claiming a Continent. Sydney: Angus and Robertson, 1996. Ford, Lisa. Settler Sovereignty: Jurisdiction and Indigenous Peoples in America and Australia. Cambridge, MA: Cambridge University Press, 2016. Russell, Peter H. Recognizing Aboriginal Title: The Mabo Case and Indigenous Resistance to English-Settler Colonialism. Toronto: University of Toronto Press, 2006. Theories of Sovereignty Bodin, Jean. Six Books of the Commonwealth. Oxford: Basil Blackwell, 1960. De Jouvenal, Bertrand. Sovereignty: An Inquiry into the Political Good. Chicago: University of Chicago Press, 1957. Grim, Dieter. Sovereignty: The Origin and Future of a Political and Legal Concept. New York: Columbia University Press, 2015. Hinsley, F.H. Sovereignty. London: C.A. Watts, 1966. Hobbes, Thomas. Hobbes's Leviathan. Reprinted from 1651 edition. Oxford: Clarendon Press, 1947. Philpott, David. Revolutions in Sovereignty: How Ideas Shaped International Relations. Princeton: Princeton University Press, 2001.

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Index

Aboriginal peoples. See Indigenous nations and peoples Aborigines, 5–6, 61, 64–5, 79–82 absolute sovereignty: Bodin and Hobbes on, 29–30, 32–3, 45; claims of, 14–15, 41, 77; federalism as alternative to, 14–15, 17, 90; Locke on, 47; resistance to, 34–5 Afghanistan, 108 Africa: African slavery, 66, 68; decolonization, 102; European interference in, 66; migrants from, 126; poverty and economic dependence, 111, 112, 141; South Africa, 72; Sudan, 106–8 Albania, 106 al-Bashir, Omar, 107–8, 109 Alexander VI (pope), 60 Algeria, 68 alliances of states, 88 Althusius, Johannes, 90 American Revolution, 38, 39, 48, 72 Amin, Idi, 106 Amnesty International, 115 Anderson, Benedict, 40 Annan, Kofi, 107

Aotearoa. See New Zealand Arab Spring, 115 Arbour, Louise, 127 Armitage, David, 56 Asia: decolonization, 102, 134; European interference in, 56, 66; Human Rights Watch Asia, 99–100, 115; poverty and economic dependence, 111, 112 Assange, Julian, 115 Australia: Aborigine population and title, 5–6, 64–5, 79–82; asylum for Rahaf Mohammed, 99, 100; decolonization, 102; Eora people, 79; immigration issues, 128; Kaurareg people, 79; Kulin people, 80; settlers and settler sovereignty, 61, 64–5, 67, 71, 78–82; Tasmania (Van Diemen’s Land), 71, 79, 80; Torres Strait Islanders, 6, 80–1, 82; and UNDRIP, 92 Austria, 34, 51, 58, 120 Azores, 60 balance of power, 47–8, 87 Barzun, Jacques, 69

166 Index Batman, John, 80 Bedanug (Possession Island), 79 Belgium, 43, 56 Bengal, 44 Bennett, Carolyn, 92 Berger, Thomas, 6–7 Bodin, Jean: Locke compared to, 44, 47; theory of sovereignty, 17, 28–31, 34, 35, 90 Boer War, 72 Bourke, Richard, 80 Brandenburg, 27 Brazil, 141 Bretton Woods Agreement (1944), 110–11 Brinton, Crane, 39, 51 Britain (England, United Kingdom): Brexit, 15, 113; British North America Act (1867), 86; civil war, 31, 33, 35, 42; and climate warming, 122–3; control of British Isles, 15, 34, 55, 89; Glorious Revolution (1688), 28, 33–4, 38, 42–3, 48; imperialism and colonies, 47–8, 55–9, 64, 71–7 (see also specific countries); as a nuclear power, 118; Royal Proclamation (1763), 72; sovereign parliament, 31–2, 35, 38; as a unitary state, 89 Brundtland, Gro Harlem, 122 Bummaree, George, 80 Burke, Edmund, 59–60 Burton, William, 80 Butler, George Lee, 120 Camilleri, Joseph, 113 Camp Smith, Linda, 103, 105 Canada: asylum for Rahaf Mohammed, 100; Charlottetown

Accord (1992), 132; and climate warming, 123–4; Confederation (1867), 5, 74, 87, 88; Constitution, 74, 86, 131–2; federal system, 17, 86–7, 88, 91–7; immigration issues, 127; multinational diversity, 132–3; Royal Proclamation (1763), 72; settler self-government, 67, 71; sovereignty of the people, 132 Canada, Indigenous nations: and assimilation polices, 74, 76, 78, 133; Dene Nation, 3–10, 131; Inuit peoples, 3, 76, 78, 96; Métis Nation, 5, 6, 75, 76, 96; Red River Settlement and Riel, 75; residential schools, 76, 94; royal commissions on, 6–7, 96; settler sovereignty over, 73–6, 94–5, 134–5; treaties and treaty federalism, 4–5, 74–6, 89, 91–7; and UNDRIP, 92–3 Canada, legislation: Act to Encourage the Gradual Civilization of the Indian Tribes (1857), 74, 76; British North America Act (1867), 86; Indian Act (1876), 76, 105; Manitoba Act (1870), 75 Canada, provinces and territories: Manitoba, 77; New Brunswick, 74, 85–6; Northwest Territories, 3, 6–7; Quebec, 72, 74, 87, 131–2, 158n1 capitalism, 66, 112 Caribbean, 56, 58, 66, 102 Carson, Rachel, 122 Charlemagne (Holy Roman Emperor), 16, 20 Charles I (king of England), 35

Index 167 Charles I (king of Spain), 62 Cherokee Nation, 73 China: and climate warming, 124; coronavirus pandemic, 139, 142; Internet policies, 114; as a nuclear power, 118, 120, 121; Opium Wars, 66; and Rome Statute, 109; and Taiwan, 12–13; on UN Security Council, 107–8; and World Trade Organization, 112 Chrétien, Jean, 7 Christianity: Christian humanism, 61–3; divine right of kings, 41–2, 44; natural law, 30, 44, 61, 63, 102; principle of subsidiarity, 90; Protestant Reformation, 26–7; and residential schools, 76, 94; sovereignty of God, 14, 15–17, 21–2. See also Roman Catholic Church city states, 27, 28, 48 civilizational confidence, 66, 67–9 classical culture (Greece and Rome), 22, 25, 60–1 climate warming, 18, 121–6, 136 Clive, Robert, 55, 57–8 Club of Rome, 122 Cold War, 117–18 colonies. See European imperialism Columbus, Christopher, 60, 62 commonwealth, 29, 30–1 communications: global systems and control, 113–14, 136; Internet, 17, 100, 104, 114–15; print media, 43–4; social media, 53 Compagne des Indes Orientales, 57 Comprehensive Test Ban Treaty, 118

confederation, confederacy, 48, 73, 88–9, 90 Conlan, Timothy, 91 Constant, Benjamin, 68 constitutional systems, 33–5, 37, 47, 104, 149n9 Cook, James, 6, 79 coronavirus (COVID–19) pandemic, 137, 139–45 Coulthard, Glen, 95 courts, 89, 103, 104, 109 Cromwell, Oliver, 42 Cuba, 62, 120 cyberwarfare, 115 Danton, Georges, 49, 51 Darfur, 106–8 Declaration on the Rights of Indigenous Peoples (UNDRIP), 65, 83, 92–4, 96, 134–5 Declaration of the Rights of Man (1789), 39 decolonization, 13, 59, 90, 93, 101–3, 134 de Jouvenal, Bertrand, 30, 34 democracy: Bodin and Hobbes on, 30, 32; de Tocqueville on, 68; Locke and Rousseau on, 41–51; settler democracy, 78 Dene Declaration of Sovereignty, 6, 7 Dene Nation, 3–9, 10, 131 Deng, Francis, 107 denial of sovereignty, 58–9, 65–6, 81, 134 Denmark, 26, 34 Dicey, A.V., 43, 86–7 Diderot, Denis, 59 divided (dual) sovereignty, 17, 39, 85, 87

168 Index divine right of kings, 41–2, 44 doctrine of discovery, 61, 63–4, 94 Dupleix, Francis, 57 Dutch Republic. See Netherlands East India Company, 56–7, 58, 60, 67 economic forces: capitalism, 66, 112; coronavirus pandemic, 142–3; economic imperialism, 59; global economy and production, 110–14; income stagnation, 126; taxation, 21, 34–5; World Bank, 17, 111 Einstein, Albert, 117 Elazar, Daniel, 90 Ellsberg, Daniel, 121 England. See Britain Enlightenment, Age of, 25, 45, 49, 56, 59 Eora people, 79 Estonia, 126 ethnic cleansing, 73, 102–3, 109 European Commission, 89 European Convention on Human Rights, 104 European Court of Human Rights, 104 European Court of Justice, 89 European imperialism: civilizational confidence, 66; doctrine of discovery, 61, 63, 94; geographic morality, 60; global politics, 58; initial contacts, 6, 61–6, 79–80; justice and international law, 59–66; managed by League of Nations, 101; racism and racial thinking, 56, 64–5, 68–9, 81–2; settler sovereignty, 71–83, 91–7; and slavery, 48, 61–2, 66, 68;

trading companies, 56–8; and Westphalian myth, 58–9 European Parliament, 89 European Union: Brexit, 15, 113; federal structure, 15, 89; immigration issues, 126; institutions and regulatory standards, 114, 115 existential challenges, 18, 117–29, 136, 139–45 Falk, Jim, 113 federal systems and federalism, 85–97; vs. absolutism, 14–15, 17, 90; vs. confederacy (alliance of states), 88–9, 90; defined, 86–7; demise of, 91; divided sovereignty, 17, 87; examples of, 90; for Indigenous nations, 90, 91–2, 135; in pandemic conditions, 140; self-rule and shared rule, 14–15, 88–91, 95–6, 135; subsidiarity principle, 90; treaty federalism, 91–7; Watts’s analysis of, 89–90; for world government, 18, 137, 144–5 Ferdinand (king of Spain), 61 feudal era, 23 Filmer, Robert, 44 Ford, Lisa, 72 France: Alsace-Lorraine, 27; Brittany, 40; Corsica, 11, 40; Enlightenment thinkers, 59, 68; Estates General, 31, 37–8, 43; French Revolution, 13, 37–41, 49, 51–2; as imagined community, 40; imperialism and colonies, 56, 57–8, 60, 68, 77; local identities, 25, 40; Normandy, 35, 40; as nuclear power, 118; as sovereign

Index 169 state, 11–12, 34; as unitary state, 89 Franciscus de Vitoria, 61 Franklin, Benjamin, 90 freedom. See liberty and freedom French Revolution, 13, 37–41, 49, 51–2 Fur (group in western Sudan), 107 General Agreement on Tariffs and Trade (GATT, 1947), 112 general will, 49–50 genocide, 73, 102–3, 109 geographic morality, 60 George II (king of England), 57 German states, Germany, 16, 19–20, 25, 56, 125 Ghoshroy, Subrata, 120 Gorbachev, Mikhail, 118–19 Greenpeace, 115 Gregory VII (pope), 19–20, 21, 22 Grotius, Hugo, 63, 102 Gutenberg, Johannes, 43 Guterres, António, 127 Haass, Richard, 106 Habsburg Empire, 26–7, 51, 58 Haitian Republic, 68 Hamas, 141–2 Hanseatic League, 28 Harari, Yuval Noah, 41, 56 Harper, Stephen, 92, 123–4 Hastings, Warren, 60 Haudenosaunee (Iroquois), 59, 90, 102 Henry IV (Holy Roman Emperor), 19–20, 21–2 Hincmar (archbishop of Reims), 15 Hinsley, F.H., 15–16

Hobbes, Thomas: on human nature, 33, 142; Locke compared to, 44–5, 47; theory of sovereignty, 4, 17, 28, 31–3, 35, 104 Holland. See Netherlands Holt, Hamilton, 117 Holy Roman Empire, 20–1, 26–8, 41, 62 Homer-Dixon, Thomas, 141, 143 Hong Kong, 112 Howard, Philip, 114 Hudson Bay Company, 75 human migration and immigrants, 18, 77–8, 81, 126–9, 135–6 human rights: Human Rights Watch, 99–100, 115; for immigrants, 128; Internet issues, 114–15; UN instruments for, 13, 102–5, 107 Hume, David, 48 Hungary, 127 Iceland, 118–19 imagined sovereignty, 40 immigrants. See human migration and immigrants imperialism. See European imperialism imperium, 20 India, 55–9, 60, 82–3, 118 Indian Brotherhood of the Northwest Territories, 6 Indian Removal Act (US), 73 Indigenous nations and peoples: and colonization, 134–5; contagious diseases among, 74, 141; and decolonization, 13, 59, 90, 93, 101–3; defined, 153–4n28; and European wars, 58, 74; initial contacts with

170 Index Indigenous nations ... (continued) Europeans, 6, 61–5, 79–80; lands and resources of, 4–5, 13–14, 46–7, 64, 79–81, 94–5; national identity within Canada, 132–3; recognized by United Nations, 83; reserves for, 5, 73–4, 75–6; residential school program, 76, 94; and settler sovereignty, 4–5, 71–83, 91–2, 94–5; sovereignty denied to, 58–9, 65–6; treaties and treaty federalism, 5–6, 73, 74–6, 91–7; and UNDRIP, 65, 83, 92–4, 96, 134–5. See also specific countries and peoples Industrial Revolution, 65, 66 Innis, Harold, 44 Intergovernmental Panel on Climate Change (IPCC), 123, 124–5 International Commission on Intervention and State Sovereignty (ICISS), 107 International Court of Justice (The Hague), 103 international courts, 89, 103, 104, 109 International Criminal Court (ICC, The Hague), 109 international law: decolonization of, 13–14, 102; and European imperialism, 13–14, 63–6, 93; and human rights, 103–4; on migration, 128; responsibility to protect (R2P), 106–8; sovereign states as units of, 13. See also natural law International Monetary Fund (IMF), 111 Internet, 17, 100, 104, 114–15 Inuit peoples, 3, 76, 78, 96

Iran, 141 Iraq, 14, 108 Ireland, 15, 55, 59, 89 Iroquois Confederacy (Haudenosaunee), 59, 90, 102 Israel, 118, 127, 141–2 Italy, 16, 21, 28, 56, 126 Jackson, Andrew, 73 Jacobins, 49, 51 James I (king of England), 41 James II (king of England), 42 Janjaweed, 107–8 Japan, 82, 117, 126 Jurkevics, Anna, 27 Kaurareg people, 79 Kehler, C. Robert, 121 Klondike gold rush, 4 Kosovo, 106 Kulin people, 80 Kuwait, 14, 99 Kyoto Protocol, 124–5 Lafayette, Gilbert du Motier, Marquis de, 39 lands and resources: of Indigenous peoples, 4–5, 13–14, 64, 79–81, 94–5; inhabited vs. terra nullius, 64, 79–80, 94; ownership and property rights, 46–7 Las Casas, Bartolomé de, 62 law. See international law; natural law law of nature. See natural law League of Nations, 59, 101, 103 Leo III (pope), 16 Levellers, 42 Leyen, Ursula von der, 89 liberal imperialism, 67–9

Index 171 liberalism, 44–51 liberty and freedom: vs. absolute sovereignty, 30, 32; collective freedom, 50; for European settlers, 71; with federalism, 15, 38, 91, 113, 133; Locke and Rousseau on, 47–51; populist threat to, 53; religious toleration and freedom, 27, 35, 102; vs. slavery, 48, 60, 61–2, 66, 68 Libya, 126 Locke, John, 29, 44–8, 50 Louis III (pope), 20 Louis XVI (king of France), 37–40, 51–2 Lovelace, Sandra, 105 Luther, Martin, 26 Mabo, Eddie Koiki, 81 Macdonald, John A., 87 Mackenzie River (Deh Cho), 4, 8 Mackenzie Valley Pipeline Inquiry, 3, 6–9 Mansfield, William Murray, 1st Earl of, 72 Maori, 59, 64, 71, 76–8, 81 Maria Theresa (archduchess), 58 Marie Antoinette (queen of France), 37, 51 Maritime Bank of the Dominion of Canada, 85–6 Marshall, John (chief justice), 73 Mary II (queen of England), 42 Mathilde of Tuscany, 19, 21–2 Maurois, André, 39, 40 McLuhan, Marshall, 44, 114 McNeil, Kent, 154n29 Médecins Sans Frontiéres, 115 Medvedev, Dmitry, 120 Melanesian peoples, 81

Métis Nation, 5, 6, 75, 76, 96 migration. See human migration and immigrants Milhem, Ibrahim, 141 Mill, John Stuart, 67–8 Mirabeau, Honoré, 38 Mohammed, Rahaf (formerly Rahaf Mohammed Mutlaq al-Qunun), 99–100, 115 monarchs, 14, 16, 33–6, 134 Montesquieu (Charles-Louis de Secondat, Baron de La Brède et de Montesquieu), 38 Morgan, Edmund, 41–2 Mounk, Yascha, 115, 126 Münster, Peace of Munster, 26, 27 Murrell, Jack Congo, 80 Murrow, Edward R., 117 Museveni, Yoweri, 106 Nadli, Michael (Deh Cho grand chief), 9 Nain, Bassem, 141 Napoleon Bonaparte, 52, 68 nation states. See sovereign nation states NATO (North Atlantic Treaty Organization), 106, 120 natural law (law of nature), 30, 44, 61, 63, 102 Nault, Robert, 9 Necker, Jacques, 38–9 neocolonialism, 111 Netherlands: East India Company, 56–7, 58, 60, 67; House of Orange, 42; imperialism and colonies, 56, 60, 72, 79, 82; independence from Spain, 26, 27, 90; state-building, 34, 52; and Treaty on Prohibition of Nuclear Weapons, 120

172 Index New Brunswick, 74, 85–6 New South Wales, 71, 79, 80, 81 New Zealand (Aotearoa): and decolonization, 102; Maori population and settler sovereignty, 59, 64, 71, 76–8, 81; Treaty of Waitangi (1840), 77–8; Treaty on Prohibition of Nuclear Weapons, 120; and UNDRIP, 92 non-governmental organizations (NGOs), 100, 109–16, 129 Non-Proliferation Treaty (NPT), 118 Normandy, 35, 40 North Korea, 118, 121 Northwest Territories, 3, 6–7 nuclear weapons, 18, 117–21, 136 Nyerere, Julius, 106 Olsen, Kevin, 40, 52–3 Opium Wars, 66 Osnabruck, 26 Oxfam, 115 Pakistan, 118 Palestine, 141–2 Palmater, Pamela, 95 Palmer, R.R., 41 Papua New Guinea, 80–1 Paris Accord, 124 Paul III (pope), 62 Peace of Augsburg (1585), 27 Peace of Munster (1648), 26, 27 Peace of Paris (1783), 72 Peccei, Aurelio, 122 Phillip, Arthur, 79 Philpott, David, 101 Pitts, Jennifer, 59, 66 Poland, 27, 127 Polynesian peoples, 77, 78 popular sovereignty, 17, 42–53

populism, 53, 91, 115, 126, 135 Portugal, 35, 56, 60, 82 poverty, 122, 141 print media, 44 Protestant Reformation, 16, 26 Prussia, 34, 51 Putin, Vladimir, 18, 119 Quebec. See under Canada, provinces and territories racism, racial thinking, 56, 64–5, 68–9, 81–2 Rampel, Michelle, 127 Reagan, Ronald, 118–19 Reinold, Theresa, 106, 108 religious toleration and freedom, 27, 35, 102 Renaissance, 25, 29, 60–1 representative government, 67 reserves (for Indigenous peoples), 5, 73–4, 75–6 residential school program, 76, 94 responsibility to protect (R2P), 106–8 revolution(s), 39, 45, 47–8 Reynolds, Henry, 61 Riel, Louis, 75 rights. See human rights Roberts, Debra, 124 Robertson, Phil, 99 Robespierre, Maximilien, 49, 51 Roche, Douglas, 118, 119 Rollins College meeting (1947), 117, 136 Roman Catholic Church: Alexandrian donation, 60; divine right of kings, 41–2, 44; sovereignty attributed to,

Index 173 19–23; at Westphalia, 26. See also Christianity Roman law and empire, 20, 22, 56, 64 Rome Statue (2002), 109 Rousseau, Jean Jacques, 44, 48–51 Russia (Imperial Russia, USSR, Russian Federation); and Bretton Woods Agreement, 111; as a nuclear power, 118–20; and R2P interventions, 108; Revolution (1917), 39; and Rome Statute, 109; state building, 34; on UN Security Council, 107; and US 2016 election, 115; at Westphalia, 27 Said, Edward, 66 Sassen, Saskia, 115–16, 126 Saudi Arabia, 99–100, 104–5, 114 Scheer, Andrew, 127 Scotland, 15, 55, 89 Seeley, John, 81 self-rule and shared rule, 14–15, 88–91, 95–6, 135 Sepúlveda, Gines, 62 Serbia, 106 settler self-government, 67, 71 settler sovereignty, 4–5, 71–83, 91–2, 94–5 Seven Years’ War, 57, 58, 72 Shawnee nation, 73 Siedendorp, Larry, 15, 34 Sieyès, Bernard, 38 Simpson, Don, 7 Siraj-ud-daulah (nawab of Bengal), 55, 57–8 slavery, 48, 60, 61–2, 66, 68 Snowden, Edward, 115 social contract, 45, 48–51

Soderberg, Steven, 144 South Africa, 72, 120 sovereign nation states: vs. city states, 28; existential challenges to, 18, 117–29, 136, 139–45; as political units, 13, 16–17, 28, 66, 102; territorial borders, 105–9, 126–8, 139–40; United Nations membership, 89, 134; at Westphalia, 25–6 sovereigns, 14, 16, 33–6, 134 sovereignty: as a claim, 10–18, 133–9; claimed for God, 14, 15–17, 21–2, 41–2, 133; denial of, 58–9, 65–6, 81, 134; dimensions of, 10–13; and divine right of kings, 41–2, 44; division of (dual sovereignty), 17, 39, 85, 87; in families, 30–1; imagined or mythical, 40–1, 48, 52–3; of the people (popular), 13, 17, 37–53, 123; vs. power, 111; as a relational concept, 115–16, 131, 133; theorists of, 28–33 Soviet Union. See Russia Spain: coronavirus pandemic in, 140, 142; in Seven Year’s War, 58, 82; sovereignty and imperialism, 34, 56, 60–3, 82; in Thirty Years War, 26; at Westphalia, 26, 27 Spruyt, Hendrik, 28 Stewart, Jane, 7–9 Strategic Arms Reduction Treaty (START), 119–20 subsidiarity principle, 90 Sudan, 106–8 supranational organizations, 17, 100, 115–16 sustainable development, 125 Sweden, 26, 34, 52

174 Index Switzerland, 27, 43, 48, 90 Synod of Worms (1076), 19, 20 Taiwan, 12–13, 112, 141, 142 Tanzania, 106 Tasmania (Van Diemen’s Land), 71, 79, 80 Tecumseh (Shawnee chief), 73 temporalism, 145 terra nullius, 64, 79, 94 Thailand, 99–100, 104–5, 115 Thirty Years War, 26 Thunberg, Greta, 125 Tocqueville, Alexis de, 68 Torres Strait Islanders, 6, 80–1, 82 transnational corporations (TNCs), 113 treaties: to control nuclear weapons, 118–21; with Indigenous nations, 5–6, 73, 74–7; treaty federalism, 89, 91–7. See also names of particular treaties Treaty Eight (1899), 4 Treaty Eleven (1921), 4 Treaty of Aix-La-Chapelle (1748), 58 Treaty of Ghent, 73 Treaty of Waitangi (1840), 77–8 Treaty on Intermediate Nuclear Forces (INF, 1987), 119 Treaty on the Prohibition of Nuclear Weapons (TPNW), 120 Trudeau, Justin, 92, 100, 134 Trudeau, Pierre, 6 Truth and Reconciliation Commission (TRC), 94–5 Turkey, 126 Uganda, 106 unitary sovereignty, 17, 18 unitary states, 88, 89

United Nations, 117–29; Charter (1945) and founding, 13, 59, 93, 100–5, 111, 117, 134; Commission on Human Rights, 105, 107; as a confederacy, 88–9; Conference on Environment and Development (1992), 122; and decolonization, 13, 59, 93, 101–3, 134; Eighteen Nation Committee on Disarmament (1965–68), 118; Global Compact for Safe, Orderly, and Regular Migration (GCM, 2018), 127–8; High Commissioner for Refugees (UNHCR), 99–100; Human Rights Committee, 103; Intergovernmental Panel on Climate Change (IPCC), 123, 124–5; interventions and peace-keeping, 100, 107–9; and League of Nations, 59, 101, 103; members of, 89, 134; nuclear weapons control, 118, 120, 121; Security Council, 89, 107, 118, 144; and sovereignty of Indigenous peoples, 83, 102, 134, 153–4n28; Special Advisor for the Prevention of Genocide and Mass Atrocities, 107; Treaty on the Prohibition of Nuclear Weapons (TPNW, 2017), 120; as a world government, 117, 136–7, 144. See also UN conventions; UN covenants; UN declarations UN conventions: Convention on the Prevention and Punishment of the Crime of Genocide (1945), 102–3; Convention on the Rights of the Child (1989), 103; Convention Relating to the Status of Refugees (1951), 103

Index 175 UN covenants: Covenant of Civil and Political Rights (1966), 103; International Covenant of Economic, Social and Cultural Rights (1966), 103 UN declarations: Declaration on the Elimination of all Forms of Racial Discrimination (1963), 103; Declaration on the Elimination of Discrimination against Women (1967), 103, 105; Declaration on the Granting of Independence to Colonial Countries and Peoples (Decolonization Declaration, 1960), 93, 101–3; Declaration on the Rights of Indigenous Peoples (UNDRIP, 2007), 65, 83, 92–4, 96, 134–5; Universal Declaration of Human Rights (1948), 102, 104 United States of America: American Revolution, 38, 39, 48, 71; Cherokee Nation, 73; and climate warming, 123–5; Constitution (1789), 48, 73, 88; coronavirus pandemic, 140–1, 142; and cyberwarfare, 115; economic power, 110–12; federal system, 88, 90, 91; immigration issues, 126, 127; Indigenous nations, 5, 71–3, 92, 102; nuclear power, 117, 118–21; Obama administration, 119, 120; Trump administration, 18, 91, 119, 124, 126, 140; and UN interventions, 107–9

Van Diemen’s Land (Tasmania), 71, 79, 80 Vattel, Emmerich de, 63–4, 102 Voltaire (François-Marie Arouet), 49, 59 Wales, 15, 55, 89 War of 1812, 73, 74 War of the Austrian Succession, 58 Washee, James, 3 Watson, William, Baron Watson, 81, 86 Watts, Ronald, 89, 90 West Indies Federation, 91 Westphalia (Peace of Westphalia, 1644–48): delegations and agreements, 25–8; religious toleration, 27, 35, 102; and the sovereign nation state, 13, 16–17, 28, 66, 102; Westphalian myth, 58–9, 101 William III (William of Orange, king of England), 41 Williams, Robert, 60 Wollstonecraft, Mary, 45 women’s rights and equality, 40, 45, 99–100, 105, 135 World Bank, 17, 111 world federalism, 18, 137, 144–5 World Health Organization (WHO), 141, 143 World Refugee Council, 126 World Trade Organization (WTO), 17, 112, 115 World War II, 59, 102–3, 111, 117

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in UTP insights Books in the Series • Peter H. Russell, Sovereignty: The Biography of a Claim • Alistair Edgar, Rupinder Mangat, and Bessma Momani (eds.), Strengthening the Canadian Armed Forces through Diversity and Inclusion • David B. MacDonald, The Sleeping Giant Awakens: Genocide, Indian Residential Schools, and the Challenge of Conciliation • Paul W. Gooch, Course Correction: A Map for the Distracted University • Paul T. Phillips, Truth, Morality, and Meaning in History • Stanley R. Barrett, The Lamb and the Tiger: From Peacekeepers to Peacewarriors in Canada • Peter MacKinnon, University Commons Divided: Exploring Debate and Dissent on Campus • Raisa B. Deber, Treating Health Care: How the System Works and How It Could Work Better • Jim Freedman, A Conviction in Question: The First Trial at the International Criminal Court • Christina D. Rosan and Hamil Pearsall, Growing a Sustainable City? The Question of Urban Agriculture • John Joe Schlichtman, Jason Patch, and Marc Lamont Hill, Gentrifier • Robert Chernomas and Ian Hudson, Economics in the Twenty-First Century: A Critical Perspective • Stephen M. Saideman, Adapting in the Dust: Lessons Learned from Canada’s War in Afghanistan • Michael R. Marrus, Lessons of the Holocaust • Roland Paris and Taylor Owen (eds.), The World Won’t Wait: Why Canada Needs to Rethink its International Policies • Bessma Momani, Arab Dawn: Arab Youth and the Demographic Dividend They Will Bring

• William Watson, The Inequality Trap: Fighting Capitalism Instead of Poverty • Phil Ryan, After the New Atheist Debate • Paul Evans, Engaging China: Myth, Aspiration, and Strategy in Canadian Policy from Trudeau to Harper