Week 8 - Sovereignty-14 Feb

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Introduction to International

Relations

The concept of sovereignty

Week 8 – IR 1, 2 and 314 Feb

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Basic issue

What does International Law say about

sovereignty ?

Under international law, states have a right to

autonomy.

A sovereign state is free to independently

determine its own policy within the scope of

sovereign prerogatives

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Legal sovereignty

Legal sovereignty what is it ?

each state has the legal competence to:

1. participate in the international system on an

equal footing with other states,2. conclude treaties on the basis of consent,

3. exclude other states from interfering in its

internal affairs,4. govern the affairs of its domestic territory, and

control its borders."

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Different meaning

of sovereigntySovereignty may means different things to different people living in different cultures, through

out of different periods, who practice different specialized or prefessional competences

At least there are 13 different overlapping meanings of the term sovereignty:

1. as personalized monarch

2. as a symbol of absolute and unlimited control of power

3. as a symbol of political legitimacy

4. as a symbol of political authority

5. as a symbol of self-determined , national independence

6. as a symbol of governance and constitutional order

7. as creterion of jurisprudential of validation of all law

8. as symbol of juridical personality of sovereign equality

9. as a symbol of political recognition

10. as a symbol a formal unit of legal system

11. as a symbol of powers, immunities or previleges

12. as a symbol of juridictional competence to make and/or apply law

13. as a symbol of basic governance competencies ( constitutive process)

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Liberal and realist theories

Liberal theory treats the state in international relations asanalogous to the individual property holder at the national level.The UN charter is sometimes regarded as the guardian of this legalsovereignty right

International legal sovereignty, however, does not guarantee that

legitimate domestic authorities are able to exercise theirsovereignties in a full scale, presiding over internal matters with apower to fully enforce their policies.

Realists may disagree with the existence of legal sovereignty,because they believe that "[s]tates interact in an environment of anarchy" absent any central government that can enforce the legal

sovereignty right granted to each state. Realists argue that states primarily guard their own sovereignty

with their own forces.In the real world, states are rarely on equalfooting with respect to international relations.

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Powerful state

Powerful states often set the terms of international law favorably totheir political interest, and even the decisions made byinternational organizations reflect the states' underlying power byweighing voting rules either directly or indirectly according to thepower of such states.

However, a radical view of "power decides everything" also fails toexplain:

1. why even the weakest states still maintain legal sovereignty under

the auspices of international law and2. why forceful annexation or colonization has rarely succeededsince the declaration of the UN charte

power monoply

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Power monopoly and

equality of nations In addition to the “power monopoly” function, sovereignty also

plays other important roles. For example,

The concept is central to the idea of “equality of nations,” whichcan be abused and, at times, is dysfunctional and unrealistic, suchas in inducing “consensus” as a way to avoid the “one nation, one

vote” approach to decision making in international institutions. This approach can sometimes seriously misdirect actions of those

institutions; but consensus, in turn, can often lead to paralysis,damaging appropriate coordination and other decision making atthe international level.

The concept of equality of nations is linked to sovereignty conceptsbecause sovereignty has fostered the idea that there is no higherpower than the nation-state, so its “sovereignty” negates the ideathat there is a higher power, whether foreign or international(unless consented to by the nation-state).

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The implication of sovereignty

“Sovereignty” implies :

1. a right against interference (UN Charter, article 2 para 4) or

2. the right to interven by any foreign (or international) power.

3. It can also play an anti- democratic role in enforcing extravagantconcepts of special privilege of government officials.

Therefore, one can easily see the logical connection between thesovereignty concepts and the very foundations and sources of international law.

If sovereignty implies that there is “no higher power” than thenation-state, then it is argued that no international law norm isvalid unless the state has somehow “consented” to it.

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Behavioral and legal sovereignty

Behavioral sovereignty is the actual extent towhich a state can exercise, with its own force, itslegally granted authority.

From a behavioral perspective, "there aregradations in the extent to which states are ableto exercise their legal sovereignty."

All states have the legal rights to govern theirdomestic affairs and to control their own borders,

but the degree of actual autonomy varies inproportion to the distribution of power amongthose states.

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http://h/DATA%20DARI-%20FLASH%20%20G-%20%20DISK-2007/UI-HUMIN/Sovereignty,%20Power,%20and%20Human%20Rights%20Treaties%20%20An%20Economic%20Analysis.htm





Example

For example, the United States, arguably themost powerful state in the world, exercises thefull extent of its legal right to autonomy (or,

arguably, more than what it is legally allowed,even infringing on the legal sovereignty of others), while other weaker states like "Burundi,Columbia, Venezuela, Haiti, Liberia, Peru,

Rwanda, Uganda, and several other states havehad substantial swaths of territory in the hands of rebels or lawless gangs in the last decades."

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Legal sovereignty

One can say that the United States' behavioral sovereigntyis greater than its legal sovereignty,

while weaker states exercise behavioral sovereignties whichare less than what they are legally entitled to under currentinternational law.

In an extreme example, one state can have behavioralsovereignty with no legal sovereignty.

What about Palestine ? It is not legally an independentstate, but, for all practical purposes, it exercises behavioral

sovereignty over its people and territory.On the other hand, a government in exile has only legal

sovereignty with no power to exercise behavioralsovereignty

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Behavioral sovereignty

develops into legal sovereignty These two sovereignty concepts mutually constitute each

other.

For example, when a state effectively controls certainterritory for a long time without any legal rights,international law bestows upon the state a right of legalsovereignty over the territory.

Likewise, when insurgents have taken and controlled asubstantial territory by armed rebellion, international lawsometimes grants the insurgents a right to self-determination, which is a type of legal sovereignty.

Thus, a behavioral sovereignty can develop into a legalsovereignty and legal sovereignty can be taken away whenthe lack of behavioral sovereignty is persistent.

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Analysis of legal and

behavioral sovereignty :

human rights issue legal sovereignty and behavioral sovereignty

are two separate concepts, even though they

are mutually constitutive .

the concept of legal sovereignty will be used

to analyze the efficient solution for humanrights protection, while the behavioral

sovereignty acts as a restraint on that analysis.

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Prohibition set by the UN Charter

The UN Charter prohibits the threat or use of force againstthe autonomy of other states, except in self-defense andinternationally sanctioned reactions to threats to peace.

Abhorrence of war is so great that the internationalcommunity often fails to allow military actions even whenhumanitarian intervention is necessary.

Despite of this lack of public enforcement, why doesinternational law try to put some restrictions on the state'sdiscretion to determine its own human rights policy?

The common argument for such restrictions is : the existence of important negative externalities

generated by human rights abuses

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Abuse of human rights

When a state makes a decision regarding human rights issues, the stateoften does not consider the possible negative effect on other states.

Significant abuses of human rights may impose threats to people in otherstates as well as to domestic citizens. Refugees from the abusing stateoften flow into other states

A state violating the human rights of its own people is able to wage warmore cheaply, because such a state can "force individuals to fight orsupport the military apparatus in its war-making activities"

while on the other hand, human rights respecting states must bear ahigher political cost of war. This is called negative externalities theeffect on regional stability .

pure altruism is one of the source of externalities generated by humanrights abuses in other states.

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No rights beyond borders

Nothing in the UN charter precludes a recognition thatthere are rights beyond borders.

What the charter does say is that “armed force shall not beused, save in the common interest.”

- But what is that common interest?- Who shall define it?

- Who shall defend it?

- Under whose authority?

- And with what means of intervention?

In seeking answers to these monumental questions, there arefour aspects of intervention which need to be consideredwith special care.

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Four aspects of intervention

First, “intervention” should not be understood asreferring only to the use of force. A tragic irony of many of the crises that go unnoticed or unchallengedin the world today is that they could be dealt with by

far less perilous acts of intervention than the one wesaw this year in Yugoslavia.

If the new commitment to humanitarian action is to

retain the support of the world’s peoples, it must be—and must be seen to be—universal, irrespective of region or nation. Humanity, after all, is indivisible.

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Four aspects of intervention (con’t)

Second, it is clear that traditional notions of sovereignty alone arenot the only obstacle to effective action in humanitarian crises.

No less significant are the ways in which states define their nationalinterests. The world has changed in profound ways since the end of

the cold war, but I fear our conceptions of national interest havefailed to follow suit.

A new, broader definition of national interest is needed in the newcentury, which would induce states to find greater unity in thepursuit of common goals and values.

In the context of many of the challenges facing humanity today, thecollective interest is the national interest.

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Third, in cases where forceful intervention does become necessary, theSecurity Council—the body charged with authorising the use of forceunder international law—must be able to rise to the challenge.

The choice must not be between :

- council unity , or

- inaction in the face of genocide—as in the case of Rwanda— or

- council division,

but regional action, (UN Charter, article 52) as in the case of Kosovo.

In both cases, the UN should have been able to find common ground inupholding the principles of the charter, and acting in defence of ourcommon humanity.

The charter requires the council to be the defender of the “commoninterest”. Unless it is seen to be so—in an era of human rights,interdependence n—there is a danger that others will seek to take itsplace.

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Fourth, when fighting stops, the internationalcommitment to peace must be just as strong aswas the commitment to war. In this situation, too,consistency is essential.

Just as our commitment to humanitarian actionmust be universal if it is to be legitimate, so ourcommitment to peace cannot end as soon asthere is a ceasefire.

The aftermath of war requires skills, sacrifice,resources than the war itself, if lasting peace is tobe secured.

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Questions for you

1. Is intervention into domestic affairs of other

states justified ?

2. Sovereignty cannot be compromised ! Do you

agree or disagree ?

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last page

thank you

my dear students of IR

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Documents

Week 8 - Sovereignty-14 Feb