The Briefing

Contracting Out: Sovereignty and Security

Tuesday, February 5, 2013
Global Puzzle Pieces
Image credit: 
BrianAJackson, iStock

Threats to American national security come from three sources: major powers, malevolent states, and weak or failed states.   There is, obviously, nothing new about tension with another major power, with the most obvious current challenge coming from China.

The other two sources of threat to American national security—malevolent states with effective national control but limited aggregate material capabilities and states that cannot control their own territory (failed or weak states)—are historically unique.  Threats from both of these sources are the result of the decoupling of underlying material capability (as indicated by GDP, population, military spending, and technological capacity) and the ability to inflict harm especially with nuclear and biological weapons.

In the case of malevolent states these capabilities are controlled by the state apparatus.  Although the ability of malevolent but under-resourced states to inflict catastrophic damage is new, the measures to counter these threats are not.  They include offensive, defensive and deterrent military actions, as well as economic sanctions.

In the case of weak or failed states—states that cannot control their own territory—both the threats and some of the measures to address them are new.   The threats derive from the ability of non-state actors to stage mass terrorist attacks with or without weapons of mass destruction.  We have no good way of estimating the probabilities of such attacks, but they are not vanishingly small.  One way to address these threats—contracting out some aspects of internal security to external actors—involves departures from the conventional norms of sovereignty but not from accepted international legal practice.   Conventional sovereignty involves international recognition (international legal sovereignty), the independence of domestic authority structures from external influence (Westphalian/Vattelian sovereignty), and effective regulation of activities within and across a state’s borders (domestic sovereignty).   Conventional sovereignty has been compromised in many different ways.  States have used their international legal sovereignty to compromise their Westphalian/Vattelian sovereignty to, for instance, the European Union.  As long as these contracts are voluntary they pose no problem for international law. Failed and weak states do not have effective domestic sovereignty.

One way to address security threats emanating from weak and failed states is to secure agreements that give the United States the right to combat enemy forces within the target state’s territory; that is, to have the target state contract away some aspects of the provision of security.   There have been agreements between the United States and a number of Latin American countries to send teams of armed advisers (military, DEA), some of which have subsequently engaged in kinetic operations in the host country.  Yemeni political leaders have publicly endorsed the use of American drones.  The US government has used drones in Pakistan relying on tacit understandings.

There is no international regime—no shared agreements on principles, norms, and rules that govern targeted security operations—designed to reduce transnational threats emanating from weak and failed states.  In most cases to date the United States has relied on agreements with host countries.  In some cases it has acted unilaterally, as when Navy SEAL teams killed Osama bin Laden without approval from Pakistan.  Where agreements have existed they have been tailored to specific circumstances; when it has acted unilaterally the United States has invoked some version of the right of self -defense.  Developing a shared set of principles, rules, and norms, will be challenging because the conventional norms of Westphalian/Vattelian sovereignty pose legitimacy problems for any explicit agreement that contracts out the provision of internal security to a foreign actor, and because in some cases the interests of the United States and a potential target country might be so divergent that no agreement is possible.

There are at least three policy options that the United States could consider:

  1. A general UN-type convention legitimating the contracting out of internal security.  This will never happen given the commitment of the G77 to non-intervention.
  2. Continuing with the present strategy of relying on tailored agreements concluded with individual states, and invoking the right of self-defense where no agreement is possible.
  3. Creating a Global Security Partnership.  This partnership would be a coalition of the willing.   Members of the coalition would sign on to a set of principles that would re-state existing norms including:
    • The obligation of a state to provide security to its own population
    • The obligation of a state to combat transnational threats emanating from its own territory
    • The right of a state to freely enter into an agreement with another state to provide security
    • The right of self defense

Such a coalition of the willing could reduce the legitimacy burden that now makes it more difficult for the United States to address transnational threats emanating from weak or failed states, by making it easier for political leaders in target states to contract out security provision.