Document(s) 13 of 37

State sovereignty has, for the past several hundred years, been a defining principle of interstate relations and a foundation of world order. The concept lies at the heart of both customary international law and the United Nations (UN) Charter and remains both an essential component of the maintenance of international peace and security and a defence of weak states against the strong. At the same time, the concept has never been as inviolable, either in law or in practice, as a formal legal definition might imply. According to former Secretary-General Boutros Boutros-Ghali, "The time of absolute sovereignty … has passed; its theory was never matched by reality."¹

Empirically, sovereignty has routinely been violated by the powerful. In today’s globalizing world, it is generally recognized that cultural, environmental, and economic influences neither respect borders nor require an entry visa. The concept of state sovereignty is well entrenched in legal and political discourse. At the same time, territorial boundaries have come under stress and have diminished in significance as a result of contemporary international relations. Not only have technology and communications made borders permeable, but the political dimensions of internal disorder and suffering have also often resulted in greater international disorder.² Consequently, perspectives on the range and role of state sovereignty have, particularly over the past decade, evolved quickly and substantially.

The purpose of this essay is to set out the scope and significance of state sovereignty as a foundation on which to explore contemporary debates on intervention. Students and scholars are aware of the enormous and contentious literature on this subject. As one scholar has summarized,

Few subjects in international law and international relations are as sensitive as the notion of sovereignty. Steinberger refers to it in the Encyclopedia of Public International Law as "the most glittering and controversial notion in the history, doctrine and practice of international law." On the other hand, Henkin seeks to banish it from out vocabulary and Lauterpacth calls it a "word which has an emotive quality lacking meaningful specific content," while Verzijl notes that any discussion on this subject risks degenerating into a Tower of Babel. More affirmatively, Brownlie sees sovereignty as "the basic constitutional doctrine of the law of nations" and Alan James sees it as "the one and only organising principle in respect of the dry surface of the globe, all that surface now … being divided among single entities of a sovereign, or constitutionally independent kind." As noted by Falk, "There is little neutral ground when it comes to sovereignty."³

Nevertheless, a quick review of the basics is useful for less specialized readers. The analysis begins with a review of the origins of the concept and its role in the evolution of state practice. This is followed by a discussion of the legal meaning of sovereignty and of its counterpart principle, nonintervention in domestic affairs. Together they comprise the fundamental bedrock of the contemporary international order. The widely acknowledged limits of state sovereignty are then examined, before turning to four contemporary challenges.

MEANING AND PURPOSE OF SOVEREIGNTY

State sovereignty denotes the competence, independence, and legal equality of states. The concept is normally used to encompass all matters in which each state is permitted by international law to decide and act without intrusions from other sovereign states. These matters include the choice of political, economic, social, and cultural systems and the formulation of foreign policy. The scope of the freedom of choice of states in these matters is not unlimited; it depends on developments in international law (including agreements made voluntarily) and international relations.

The concept of sovereign rule dates back centuries in the context of regulated relationships and legal traditions among such disparate territorial entities as Egypt, China, and the Holy Roman Empire. However, the present foundations of international law with regard to sovereignty were shaped by agreements concluded by European states as part of the Treaties of Westphalia in 1648.⁴ After almost 30 years of war, the supremacy of the sovereign authority of the state was established within a system of independent and equal units, as a way of establishing peace and order in Europe.⁵ The core elements of state sovereignty were codified in the 1933 Montevideo Convention on the Rights and Duties of States. They include three main requirements: a permanent population, a defined territory, and a functioning government. An important component of sovereignty has always been an adequate display of the authority of states to act over their territory to the exclusion of other states.

The post-1945 system of international order enshrined in the UN Charter inherited this basic model. Following decolonization, what had been a restrictive and eurocentric (that is, Western) order became global. There were no longer "insiders" and "outsiders" because virtually every person on Earth lived within a sovereign state. At the same time, the multiplication of numbers did not diminish the controversial character of sovereignty.

In accordance with Article 2 (1) of the UN Charter, the world organization is based on the principle of the sovereign equality of all member states. While they are equal in relation to one another, their status of legal equality as a mark of sovereignty is also the basis on which intergovernmental organizations are established and endowed with capacity to act between and within states to the extent permitted by the framework of an organization. In 1949 the International Court of Justice (ICJ) observed that "between independent States, respect for territorial sovereignty is an essential foundation of international relations."⁶ Thirty years later, the ICJ referred to "the fundamental principle of state sovereignty on which the whole of international law rests."⁷

As a hallmark of statehood, territorial sovereignty underlies the system of international order in relations among states. An act of aggression is unlawful, not only because it undermines international order, but also because states have exercised their sovereignty to outlaw war. In addition, the failure or weakening of state capacity that brings about a political vacuum within states leads to human tragedies and international and regional insecurity. Repressive, aggressive, or collapsed states may result in threats to international peace and security.

The principle of noninterference in affairs that are within the domestic jurisdiction of states is the anchor to state sovereignty within the system of international relations and obligations. Jurisdiction broadly refers to the power, authority, and competence of a state to govern persons and property within its territory. It is labelled "prescriptive" and "enforcement." Prescriptive jurisdiction relates to the power of a state to make or prescribe law within and outside its territory, and enforcement jurisdiction is about the power of the state to implement the law within its territory. Jurisdiction exercised by states is then the corollary of their sovereignty. Jurisdiction is clearly founded on territorial sovereignty but extends beyond it. Jurisdiction is prima facie exclusive over a state’s territory and population, and the general duty of nonintervention in domestic affairs protects both the territorial sovereignty and the domestic jurisdiction of states on an equal basis.

Within the Charter of the UN, there is an explicit prohibition on the world organization from interfering in the domestic affairs of member states. What may be the Charter’s most frequently cited provision, Article 2 (7), provides that "[n]othing contained in the present Charter shall authorise the United Nations to intervene in matters that are essentially within the domestic jurisdiction of any State or shall require the Members to submit such matters to settlement under the present Charter."

In sum, sovereignty is a key constitutional safeguard of international order. Despite the pluralization of international relations through the proliferation of nonstate actors — evidenced by an accelerated rate of economic globalization, democratization, and privatization worldwide — the state remains the fundamental guarantor of human rights locally, as well as the building block for collectively ensuring international order.

The equality in legal status of sovereignty also offers protection for weaker states in the face of pressure from the more powerful. This sentiment was captured by Algerian President Boueteflika, who, as President of the Organization for African Unity (OAU), addressed the UN General Assembly in 1999, immediately after the Secretary-General, and called sovereignty "our final defense against the rules of an unjust world."⁸

LIMITS OF SOVEREIGNTY

There are important and widely accepted limits to state sovereignty and to domestic jurisdiction in international law. First, the Charter highlights the tension between the sovereignty, independence, and equality of individual states, on the one hand, and collective international obligations for the maintenance of international peace and security, on the other.⁹ According to Chapter VII, sovereignty is not a barrier to action taken by the Security Council as part of measures in response to "a threat to the peace, a breach of the peace or an act of aggression." In other words, the sovereignty of states, as recognized in the UN Charter, yields to the demands of international peace and security. And the status of sovereign equality only holds effectively for each state when there is stability, peace, and order among states.

Second, state sovereignty may be limited by customary and treaty obligations in international relations and law. States are legally responsible for the performance of their international obligations, and state sovereignty therefore cannot be an excuse for their nonperformance. Obligations assumed by states by virtue of their membership in the UN and the corresponding powers of the world organization presuppose a restriction of the sovereignty of member states to the extent of their obligations under the Charter.

Specifically, Article 1 (2) stipulates that "[a]ll Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfil in good faith the obligations assumed by them in accordance with the present Charter." Furthermore, under "Purposes and Principles," this same article obliges member states to achieve international cooperation in solving problems of an economic, social, cultural, or humanitarian character and in promoting and encouraging respect for human rights and for fundamental freedoms for all, without distinction as to race, sex, language, or religion. This article further recognizes the UN as a centre for harmonizing the actions of states in the attainment of these common ends. Thus, the Charter elevates the solution of economic, social, cultural, and humanitarian problems, as well as human rights, to the international sphere. By definition, these matters cannot be said to be exclusively domestic, and solutions cannot be located exclusively within the sovereignty of states.

Sovereignty therefore carries with it primary responsibilities for states to protect persons and property and to discharge the functions of government adequately within their territories. The quality and range of responsibilities for governance have brought about significant changes in state sovereignty since 1945. In particular, since the signing of the UN Charter, there has been an expanding network of obligations in the field of human rights. These create a dense set of state obligations to protect persons and property, as well as to regulate political and economic affairs. Sovereignty is incapable, then, of completely shielding internal violations of human rights that contradict international obligations.

Similarly, Article 2 (7) of the Charter is also subject to widely accepted limits. In the first place, this article is concerned chiefly with the limits of the UN as an organization. In the second place, the words "essentially within the domestic jurisdiction of States" refer to those matters that are not regulated by international law. As the ICJ has concluded, "[T]he question whether a certain matter is or is not solely within the domestic jurisdiction of a State is an essentially relative question; it depends on the development of international relations."¹⁰ The ICJ has further concluded that it hardly seems conceivable that terms like "domestic jurisdiction" were intended to have a fixed content, regardless of the subsequent evolution of international law.¹¹

Sovereignty has been eroded by contemporary economic, cultural, and environmental factors. Interference in what would previously have been regarded as internal affairs — by other states, the private sector, and nonstate actors — has become routine. However, the preoccupation here is not these routine matters but the potential tension when the norm of state sovereignty and egregious human suffering coexist. As Kofi Annan suggested, in his opening remarks at the 1999 General Assembly, "States bent on criminal behaviour [should] know that frontiers are not the absolute defence."¹² In this respect, events in the last decade have broken new ground.

EMERGING CHALLENGES TO SOVEREIGNTY

The limits on sovereignty discussed above are widely accepted. They originate in the Charter itself, in authoritative legal interpretations of that document, and in the broader body of international law that has been agreed on by states. In recent decades, and particularly since the end of the Cold War, four more radical challenges to the notion of state sovereignty have emerged: continuing demands for self-determination, a broadened conception of international peace and security, the collapse of state authority, and the increasing importance of popular sovereignty.

In many ways, a central contemporary difficulty arises from the softening of two norms that had been virtually unchallenged during the Cold War, the sanctity of borders and the illegitimacy of secession. For almost half a century, collective self-determination was limited to the initial process of decolonization. Existing borders were sacrosanct, and it was unthinkable that an area of a state would secede, even with the consent of the original state. The OAU’s Charter was clear that colonial borders, although it is generally agreed that they were arbitrarily drawn, still had to be respected, or chaos would ensue. Uti possidetis, ita possideatis (as you possess, so may you possess) was accepted as the necessary trade-off for a modicum of international order.

At the end of the Cold War, however, these relatively clear waters became muddied. First, the Soviet Union became a "former superpower." Russia inherited the Soviet Union’s legal status, including a permanent seat on the Security Council, but 14 other new states were created. Shortly thereafter, Yugoslavia broke up into 6 independent states. Later in the decade, Eritrea seceded from Ethiopia.

That weakening of the norms relating to borders and secessions is creating new tensions. Contemporary politics in developing countries is deeply conditioned by the legacy of colonialism. As European states ruled so many Asian and African countries without their consent, respect for state sovereignty is the preemptive norm par excellence of ex-colonial states. In light of history, it is difficult for representatives of developing countries to take at face value altruistic claims by the West. What may appear as narrow legalism — for instance, that Security Council authorization is a prerequisite for intervention — often appears in the South as a necessary buttress against new forms of imperialism.

The second challenge is the broadening interpretation of threats to international peace and security, the Charter-enshrined licence to override the principle of nonintervention. It arises from the fact that the Charter’s collective system of international peace and security was crafted on the experience of the Second World War, some of which is of doubtful contemporary relevance. The focus was principally on the external unlawful use of sovereignty by states in committing acts of aggression. Collective efforts by the UN to deal with internal problems of peace and security, and gross violations of human rights, including genocide, have therefore run against the grain of the claim to sovereign status as set out in the Charter.

State actions approved or authorized after the Cold War’s end by the Security Council have routinely broadened the notion of what is considered a threat to international peace and security. This process actually began during the Cold War with the Security Council’s coercive decisions in the form of economic sanctions and arms and oil embargoes against apartheid in Southern Rhodesia and South Africa. In both cases, the Security Council described the recourse to Chapter VII action as a response to "threats to international peace and security." However, what clearly motivated state decision making was the human costs resulting from aberrant domestic human rights policies of white-minority regimes. An affront to civilization was packaged as a threat to international peace and security in order to permit action.

The evolution of the definition of a threat to international peace and security accelerated in the 1990s. For instance, while recalling Article 2 (7) of the Charter, the Security Council, in Resolution 688 (1991), nonetheless condemned "the repression of the Iraqi civilian population in many parts of Iraq, including most recently in Kurdish populated areas."¹³ The Security Council has repeatedly condemned attacks on civilians, in Bosnia and Herzegovina, in Sierra Leone, and in Kosovo, which constitute grave violations of international law. It has reaffirmed that persons who commit or order the commission of grave breaches of the Geneva Conventions and the Additional Protocols are individually responsible in respect of such breaches.¹⁴ Similarly, the establishment of international tribunals with criminal jurisdiction and the negotiation of the Rome Statute on the International Criminal Court signal that atrocities committed against human beings by their own governments — including war crimes, crimes against humanity, and the perpetration of genocide — may trump claims of sovereignty.¹⁵

The main interventions of the 1990s were justified, at least in part, on humanitarian grounds, though again the humanitarian dimensions were framed as threats to international peace and security. In most cases, the dire humanitarian situation was explicitly mentioned in the Security Council’s authorization — the most extreme case being Somalia, where "humanitarian" appeared 18 times in Resolution 794 (1992). In a session devoted to Africa in January 2000, the AIDS pandemic was also framed as falling within the Security Council’s mandate. In short, the range of interpretations of international peace and security — the concept that defines the Security Council’s mandate — has been substantially broadened, albeit not without controversy.

The third challenge to traditional interpretations of state sovereignty has arisen because of the incapacity of certain states to effectively exercise authority over their territories and populations. In some cases, sovereignty is a legal fiction not matched by an actual political capacity. They are, in the words of one analyst, "quasi-states."¹⁶ And as mentioned earlier, the display of actual control over territory is a prominent dimension of sovereign status. Some commentators have even argued that failed states violate the substantive UN membership requirement in Charter Article 4 that they "are able to carry out" their obligations.

This perspective is important in light of the growing awareness that state capacity and authority are essential conditions for the protection of fundamental rights. These conditions do not invoke nostalgia for repressive national-security states, but they recognize that a modicum of state authority and capacity is a prerequisite for the maintenance of domestic and international order and justice.

The absence or disappearance of a functioning government can lead to the same kinds of human catastrophe as the presence of a repressive state or the outbreak of a deadly civil war. Resounding features of these so-called failed states are anarchy, chronic disorder, and civil war waged without regard for the laws of armed conflict. These features, individually or collectively, inhibit or prevent a state from acting with authority over its entire territory. The failure of state sovereignty is most obviously evidenced by the lack of control where territorial sovereignty is effectively contested by force internally. In this situation, insurgents may occupy and control large portions of the territory, inhibiting the state from carrying out its responsibility to protect lives and property and maintain public security.

The political vacuum resulting from these circumstances leads to nonstate actors’ taking matters into their own hands, the massive flight of refugees, and the forced displacement of populations. These issues also create consequences of concern to other states, international organizations, and civil society. In lending support to the intervention by the Economic Community of West African States in Liberia, Zimbabwe went so far as to take the position that "when there is no government in being and there is just chaos in the country," domestic affairs should be qualified as meaning "affairs within a peaceful environment."¹⁷

The grave humanitarian consequences of the failure of state capacity has led the Security Council to override state sovereignty by determining that internal disorder may pose a threat to international peace and security. In one case in particular, Somalia, the complete absence of state capacity prompted the Security Council to authorize a Chapter VII intervention.

The fourth challenge to traditional state sovereignty emerges from the changing balance between states and people as the source of legitimacy and authority. The older version of the rule of the law of states is being tempered by the rule of law based on the rights of individuals. And a broader concept of sovereignty, encompassing both the rights and the responsibilities of states, is now being more widely advocated.

One formulation has been proposed by Kofi Annan in his widely cited article in The Economist on the "two concepts of sovereignty," which helped launch the intense debate on the legitimacy of intervention on humanitarian grounds. In it he argued that one concept of sovereignty is oriented around states and the other around people:

State sovereignty, in its most basic sense, is being redefined — not least by the forces of globalization and international co-operation. States are now widely understood to be instruments at the service of their peoples, and not vice versa. At the same time individual sovereignty — by which I mean the fundamental freedom of each individual, enshrined in the Charter of the UN and subsequent international treaties — has been enhanced by a renewed and spreading consciousness of individual rights. When we read the Charter today, we are more than ever conscious that its aim is to protect individual human beings, not to protect those who abuse them.

For Annan and others, sovereignty is not becoming less relevant; it remains the ordering principle of international affairs. However, "it is the peoples’ sovereignty rather than the sovereign’s sovereignty."¹⁸

Another way of approaching the increasing importance of popular sovereignty is the notion of "sovereignty as responsibility," most explicitly formulated by Francis M. Deng, the Representative of the Secretary-General on Internally Displaced Persons. This doctrine stipulates that when states are unable to provide life-supporting protection and assistance for their citizens, they are expected to request and accept outside offers of aid.¹⁹ Should they refuse or deliberately obstruct access to their displaced or other affected populations and thereby put large numbers at risk, there is an international responsibility to respond. Sovereignty then means accountability to two separate constituencies: internally, to one’s own population; and internationally, to the community of responsible states and in the form of compliance with human rights and humanitarian agreements. Proponents of this view argue that sovereignty is not absolute but contingent. When a government massively abuses the fundamental rights of its citizens, its sovereignty is temporarily suspended.

A third variant on this theme revolves around the concept of human security. Security has traditionally been conceived in terms of the relations between states, but for a growing number of states the security of individuals is becoming a foreign policy priority in its own right. According to a group of states participating in the Human Security Network, "[H]uman security means freedom from pervasive threats to people’s rights, their safety or even their lives."²⁰ Though the state remains the principal provider of security, it is seen in instrumental terms — as a means to an end, rather than an end in itself. In the face of repressive or weak states, advocates of human security argue that international actors have a responsibility to come to the aid of populations at risk. Ultimately, "peace and security — national, regional and international — are possible only if they are derived from peoples’ security."²¹

These approaches all see the basis for sovereignty shifting from the absolute rights of state leaders to respect for the popular will and internal forms of governance based on international standards of democracy and human rights.²² Their advocates suggest that on a scale of values the sovereignty of a state does not stand higher than the human rights of its inhabitants.²³

Some observers charge that humanitarian intervention is simply the latest phase of Euro-centric domination. Human rights are the contemporary Western values being imposed in place of Christianity and the "standard of civilization"²⁴ in the 19th and early 20th century. Nevertheless, from many quarters the view is emerging that sovereignty is no longer sacrosanct.²⁵ Sovereignty as the supreme power of a state has always been limited, originally by divine law, respect for religious practices, and natural law; and subsequently, limitations have resulted from the consent-based system of the law of nations.²⁶ "The doctrine of national sovereignty in its absolute and unqualified form, which gave rulers protection against attack from without while engaged within in the most brutal assault on their own citizens," writes Ramesh Thakur, "has gone with the wind."²⁷

NOTES

1. Boutros Boutros-Ghali, An Agenda for Peace (New York: United Nations, 1992), para. 17.

2. Mohammed Ayoob, "The New-Old Disorder in the Third World," Global Governance 1, no. 1 (Winter 1995), pp. 59—78.

3. Nico Schrijver, "The Changing Nature of State Sovereignty," The British Year Book of International Law 1999 (Oxford: Clarendon Press, 2000), pp. 69—70.

4. Francis Hinsley, Sovereignty (London: Basic Books, 1966), p. 126; Francis Abiew, The Evolution of the Doctrine and Practice of Humanitarian Intervention (The Hague: Kluwer, 1999), pp. 26—27; Louis Henkin, International Law: Politics and Values (London: Martinus Nijhoff, 1995), pp. 9—10; and W. Michael Reisman, "Sovereignty and Human Rights in Contemporary International Law," American Journal of International Law 84 (1990), p. 867.

5. Stephen D. Krasner, "Compromising Westphalia," International Security 20 (Winter 1995—1996), p. 115.

6. ICJ Reports, 1949, p. 4.

7. ICJ Reports, 1986, para. 263.

8. Quoted by Shashi Tharoor and Sam Daws, "Humanitarian Intervention: Getting Past the Reefs," World Policy Journal XVIII, no. 2 (Summer 2001), p. 25.

9. Christopher M. Ryan, "Sovereignty, Intervention, and the Law: A Tenuous Relationship of Competing Principles," Millennium: Journal of International Studies 26 (1997), p. 77; and Samuel M. Makinda, "Sovereignty and International Security: Challenges for the United Nations," Global Governance 2, no. 2 (May—August 1996), p. 149.

10. Emphasis added. This is an interpretation similar to that of the Permanent Court of International Justice in its Advisory Opinion concerning the Tunis and Morocco Nationality Decrees (1923), Series B, no. 4, p. 4.

11. Aegean Sea Case, in ICJ Reports, 1978, p. 32.

12. Kofi A. Annan, "Secretary-General’s Speech to the 54th Session of the General Assembly," September 20, 1999.

13. This resolution was adopted in the framework of "consequences which threaten international peace and security in the region." It was criticized by the states that abstained (China and India) and voted against (Cuba, Yemen, and Zimbabwe) for being concerned with a domestic issue.

14. Statement by the President of the Security Council, October 30, 1992, UN Document S/24744.

15. Theodore Meron, "International Criminalization of Internal Atrocities," American Journal of International Law 89 (July 1995), p. 554; and Louis Henkin, "Kosovo and the Law of Humanitarian Intervention," American Journal of International Law 93 (1999), p. 824.

16. Robert H. Jackson, Quasi-States: Sovereignty, International Relations, and the Third World (Cambridge: Cambridge University Press, 1990). See also Christopher Clapham, Africa and the International System: The Politics of State Survival (Cambridge: Cambridge University Press, 1996); I. William Zartman, ed., Collapsed States (Boulder: Lynne Rienner, 1995); and Kal J. Holsti, The State, War, and the State of War (Cambridge: Cambridge University Press, 1996). The debate began in earnest following Gerald B. Helman and Steven Ratner, "Saving Failed States," Foreign Policy, no. 89 (Winter 1992—1993), pp. 3—20.

17. Statement by President Robert Mugabe of Zimbabwe, quoted by Lori F. Damrosch, ed., Reinforcing Restraint: Collective Intervention in Internal Conflicts (New York: Council on Foreign Relations, 1993), p. 364.

18. Kofi Annan, "Two Concepts of Sovereignty," The Economist 352 (September 18, 1999), pp. 49—50.

19. 19   Francis Deng, Protecting the Dispossessed (Washington, DC: Brookings Institution, 1993); and Abiew, The Evolution of the Doctrine and Practice, pp. 1—2.

20. Knut Vollebaek, "A Perspective on Human Security: Chairman’s Summary," presented at 1st Ministerial Meeting of the Human Security Network, Lysøen, Norway, May 20, 1999. At that time, participants of the network included Austria, Canada, Chile, Ireland, Jordan, The Netherlands, Norway, Slovenia, Switzerland, and Thailand.

21. Lloyd Axworthy, "Human Security and Global Governance: Putting People First," Global Governance 7, no. 1 (January—March 2001), p. 23.

22. Reisman, "Sovereignty and Human Rights in Contemporary International Law," pp. 867—69.

23. Henkin, "Kosovo and the Law of Humanitarian Intervention," p. 824.

24. See Robert Jackson, The Global Covenant: Human Conduct in a World of States (Oxford: Oxford University Press, 2000), especially chapter 10, "Armed Intervention for Humanity," and chapter 11, "Failed States: Interantional Trusteeship." See also Mohammed Ayoob, "Humanitarian Intervention and International Society," Global Governance 7, no. 3 (July—September 2001), pp. 225-230.

25. Jarat Chopra and Thomas G. Weiss, "Sovereignty Is No Longer Sacrosanct: Codifying Humanitarian Intervention," Ethics and International Affairs 6 (1992), p. 95.

26. Charles E. Merriam, History of the Theory of Sovereignty since Rousseau (New York: Columbia University Press, 1958), p. 11.

27. Ramesh Thakur, "Global Norms and International Humanitarian Law: An Asian Perspective," International Review of the Red Cross 83, no. 841 (March 2001), p. 35.

Document(s) 13 of 37