Opinio Juris

[1] Even the most ‘absolutist’ or tyrannical sovereigns have understood themselves to be both responsible and answerable to someone or something –Hitler to future Aryan historians, the Stuarts to God…. Some contemporary thinkers like John Rawls argue that the crucial and sufficient check on political power, both internally and externally, is juridical law: the rule of constitutional or public law domestically, the rule of international law internationally, is sufficient to ensure the just exercise of sovereign power. One of the many things about such positions that I find troubling … is that international law and international institutions are frequently expected to play an overarching political and moral role as political and moral ‘overseers’, one that far exceeds claims made in the name of Christendom by the most … absolutist of Popes.

[2] Augustine has things to say, of course, about the governance of emperors and princes, etc.... His interest lies always, however, with the ‘rightness’ of their rule and not with the mechanics of it. He offers no theory of how to rule because no human model of politics can be normative. The normative model is the City of God. All earthly cities are deficient in their administration of justice…. If we must use the word in the context of Augustine’s theology, the only thing to say is that there is no ‘rightness’ (iustitia) in earthly sovereignty. Robber kings may have disciplines of peace that enable their kingdoms to function cooperatively. The role of the Church is to teach what is and is not praiseworthy against the model of the City of God….

[3] Internal sovereignty does not give states the freedom to act toward their own citizens in whatever way they choose, nor does external sovereignty mean that states abusive toward their own citizens are immune from interference by outside agents. Both forms of independence are challenged by the notions of “sovereignty as responsibility’ and by its corollary, the “responsibility to protect.” These responsibilities also challenge the notion that states have duties only toward the well being of their own citizens. Responsibility reaches across borders.

[4] Responsibility must be taken within a country for the overall discharge of the proper tasks of government in that country …. [But] responsibility [also] must be taken for the overall discharge of the proper tasks of governance in the world at large, including governing relations between the entities that are taking responsibility for discharging the proper tasks of government in each particular country.

[5] Perhaps one of the reasons it is difficult to think of international institutions having attributes of sovereignty is that they rarely impose duties on individuals. It is difficult to render unto Caesar that which is Caesar’s if the emperor never asks for anything…. Even the granting of rights is not commonly among the delegated duties assigned to international institutions…. The idea of international institutions “governing over us” by conferring rights does not resonate with the general public…. So if international institutions do not impose duties or guarantee rights, what do they do that is “sovereign”? The answer, if there is one, is that they perform sovereign functions. The best way to think of international institutions is that they are entities that “we the people” through our governments delegate tasks that cannot be achieved without international coordination.

[6] Few would now question the responsibility of governments to their citizens in terms of the basic rights and opportunities…. A government that fails in these purposes lacks legitimacy, and its sovereign authority is clearly at risk from a people whose obedience it can no longer claim as a matter of right. With respect to internal sovereignty, we appear to have gradually returned from the unquestioned sovereignty of Hobbes to the kind of de facto sovereignty that Thomas Aquinas conferred on tyrannical princes. Obedience is due as long as the ruler is oriented to the common good. Where that orientation is lacking, obedience rests on a calculation of relative costs and benefits.

[7] Theories of absolute sovereignty and theories of international law limiting it to the positive agreements or practices of states have supported the unrestricted use of force. The primary scholarly response to such theories has been to argue, in line with Augustine and Aquinas, that all human action must be subject to higher principle. One of the fundamental reasons behind the evolution of legal systems in communities was the desire to subject force, both military and individual, to law. Law exists wherever human beings strive to live together in peace and this is true of the international community as of any national or local community. Certain limited use of force for the enforcement of the law is consistent with a well-functioning legal system; force to promote the ambitions of leaders free of legal restraint is not. Thus, the history of ideas about enforcement in international law is blended with this teaching of restraint on the use of force and the superiority of law to leadership.