Sovereign Equality and Moral Disagreement

The United Nations system's foundational principle of sovereign equality reflects persistent disagreement within its membership as to what constitutes a legitimate and just internal public order. While the boundaries of the system's pluralism have narrowed progressively in the course of theUnited Nations era, accommodation of diversity in modes of internal political organization remains a durable theme of the international order. This accommodation of diversity underlies the international system's commitment to preserve states' territorial integrity and political independence, oftenat the expense of other values. For those who impute to the international legal order an inherent purpose to establish a universal justice that transcends the boundaries of territorial communities, the legal prerogatives associated with state sovereignty appear as impediments to the global advanceof legality. That view, however, neglects the danger of allowing powerful states to invoke universal principles to rationalize unilateral (and often self-serving) impositions upon weak states. Though frequently counterintuitive, limitations on cross-border exercises of power are supported bysubstantial moral and political considerations, and are properly overridden only in a limited range of cases. Sovereign Equality and Moral Disagreement accomplishes two tasks. One is to construct a unifying account of the manifestations of the principle of sovereign equality in international legal norms governing a range of subject areas, from foundational matters such as the recognition of states andgovernments to controversial questions such as legal authority for extraterritorial criminal prosecution and armed intervention. The other is to defend the principle as a morally sound response to persistent and profound disagreement within the international community as to the requirements oflegitimate and just internal public order.

Brad Roth holds a joint appointment in the Department of Political Science and the Center for Legal Studies.at Wayne State University.

Acknowledgments	p. ix
A Different Sovereignty Discourse: Sovereign Equality as a Response to Disagreement	p. 3
Sovereignty Discourses	p. 3
Why Invoke the Language of Sovereignty?	p. 6
Neither Moral Relativism nor Natural Justice: Sovereignty Equality as a Legal Response to Moral Disagreement	p. 11
The Equal Sovereignty of Weak States	p. 13
Human Rights as a Shield, or a Sword?	p. 15
The Way Forward	p. 17
The Project of International Legal Order	p. 19
Introduction	p. 19
Moral and Practical Considerations in the Crafting of Legal Standards	p. 23
Moral and Practical Considerations in Adjudication of International Law	p. 32
Positivism, Naturalism, and the Sources of International Law	p. 32
The Juridical Role	p. 37
The Nature of Public Law	p. 39
Moral Obligations to Comply with Existing International Law	p. 42
The Obligation to Obey Law as Such	p. 42
The Obligation to Obey International Law as Such	p. 44
Overcoming the Presumption: Moral Justifications for Breach	p. 50
Conclusion	p. 52
The International Law of Sovereign Equality	p. 53
Introduction	p. 53
The Many Meanings of Sovereignty	p. 57
Sovereignty as an Empirical Condition	p. 58
Sovereignty as a Policy Imperative	p. 60
Sovereignty and Domestic Legality	p. 62
Sovereignty and International Legality: The Sovereign Equality Regime	p. 67
The Persistence of "Antiquated" Sovereignty Within International Law	p. 69
The Recognized Sources of Law	p. 70
The Interface Between the International and Domestic Legal Systems	p. 71
The Fundamental Stricture Against Coercive Intervention	p. 77
Self-Determination and Non-Intervention	p. 80
Popular Sovereignty and Effective Control	p. 81
Peoples and Territorial Units	p. 85
Assertions of Normative Hierarchy in International Law	p. 88
Conclusion	p. 91
Global Pluralism and Conflicting Political Moralities	p. 93
Introduction	p. 93
The Elusive Consensus on Universal Norms	p. 95
Culture-Based Pluralisms	p. 98
Walzer and Rawls	p. 98
Rejecting Culture-Based Pluralism	p. 100
The Moral Justification of a Non-Culture-Based Pluralism	p. 103
Collective Self-Determination and Moral Disagreement	p. 103
The Moral Significance of the State	p. 107
Deontological Liberalism and the Moral Devaluation of the State	p. 107
Compulsory Collective Decisions and the Conditions of Human Flourishing	p. 111
Proliferating Rights, Clashing Duties, and Political Decisions	p. 115
Pluralism at the Far End: Political Conflict and the Physical Integrity of the Person	p. 117
Patriotism and the Duty to Uphold a Community's Political Independence	p. 121
Moral Disagreement as the Foundation of a Pluralist Global Order	p. 124
The Moral Implications of Disagreement	p. 124
The Policy Justification of a Non-Culture-Based Pluralism	p. 126
The Legal Terms of a Bounded Pluralism	p. 128
Conclusion	p. 130
Reconciling the Non-Intervention Norm with the "Responsibility to Protect"	p. 133
Introduction	p. 133
The Challenge to the Premises of the Charter Peace and Security System	p. 135
Rationalizing the Use of Force Outside the Charter Framework: Three Jurisprudential Approaches	p. 143
Bending the Law: Policy-Oriented Jurisprudence	p. 144
Breaking the Law: Positivism for Moralists	p. 151
Humanitarian Intervention and the Progressive Development of the Law	p. 157
Overselling the Responsibility to Protect: The Dangers of Disparaging Constraints on Empowered Moralism	p. 162
Conclusion	p. 167
Secessions, Coups, and the Effective Control Doctrine	p. 169
Introduction	p. 169
Effective Control and the Assessment of Secession Questions	p. 172
"Recognition" and International Legal Status: Constitutive and Declaratory Approaches	p. 172
Effectivity as an Aspect of the Traditional Criteria of Statehood	p. 174
Self-Determination of Peoples in Non-Colonial Contexts	p. 181
Nonconsensual Dissolution of Federal States: The Badinter Improvisation	p. 186
Kosovo and Beyond: The Inevitability of Ad Hoc Responses to Secession Crises	p. 193
Effective Control and the International Status of Coup Regimes	p. 200
Popular Sovereignty, Ideological Pluralism, and the Effective Control Doctrine	p. 200
Toward a Doctrine of Governmental Illegitimacy in International Law	p. 205
The Haiti and Sierra Leone Cases	p. 205
The Anti-Coup Proclamations of Regional Organizations	p. 208
The New Wave of Rejection of Coup Regimes: Honduras and Madagascar	p. 213
Conclusion	p. 218
The Decline of the Effective Control Doctrine and the Absence of a Coherent Substitute	p. 218
Coming to Terms with Ruthlessness: State Sovereignty and International Criminal Law in Domestic Courts	p. 221
Introduction	p. 221
Impunity as a Dirty Word	p. 224
Championing Legality in a Ruthless World	p. 229
Law and Morality in Retrospective and Extraterritorial Prosecution	p. 235
Positivism, Naturalism, and the Rule of Law	p. 235
Nullum Crimen Sine Lege	p. 241
Jurisdictional Limitations and Immunity Ratione Materiae	p. 244
The Doctrine of Strict Interpretation (Lenity)	p. 246
Extraordinary Circumstances: Rule-of-Law Standards in Judging the Unrechtsstaat	p. 252
International Legality and the Criminalization of Ordinary Human Rights Violations	p. 261
Conclusion	p. 270
Concluding Observations: The Enduring Need for a Pluralist Global Legal Order	p. 273
Introduction	p. 273
Eschewing Liberal-Democratic Norms as the Basis for Acknowledging State Authority	p. 275
Locating Anti-Impunity at the Periphery, Not the Core, of the International Legal Order	p. 283
A Final Word	p. 289
Table of Cases	p. 291
Index	p. 293
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Sovereign Equality and Moral Disagreement Premises of a Pluralist International Legal Order

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