03 March 2012 Written by  Dagnachew Asrat and Sileshi Zeyohannes

Sovereignty in the Changing World

The content and range of matters which are within the sovereignty of a state are determined by the functions attributed to state sovereignty in a specific period of time and by principles imposed by International Law.

The principle of sovereignty has long served as the backbone of Public International Law. Its prominent status was established with the Treaty of Augsburg (1555) and the peace of Westphalia (1648) which, in the wake of wars of religion, gave birth to the system of sovereign states. Often, it is referred to as the Westphalia State System and which no longer recognized the supreme authority of the Pope (Emperor) of Rome over the states.

Initially, in Europe, state sovereignty was often associated with the absoluteness of a state’s political power, which, at the time was vested in a king, emperor or tsar, which were allocated with almost unlimited powers and freed from the observance of the law (prince’s legibus solutus).

The French philosopher Jean Bodin (1530-1596) was the first to present a comprehensive concept of sovereignty. He rejected claims of superiority by the Pope and Emperor and advocated a general theory of the responsibility of exercising public power, under the title republica.30 In his doctrine of sovereignty, written against the backdrop of civil wars, the sovereign ruler was still the highest absolute authority (summa potesta) within a given territory; one, who could decide and legislate, unrestrained by law and without appeal, on behalf of the state, community.

Grotius was one of the first international lawyers who linked the notion of sovereignty to certain principles of Natural Law. In his De Jure Belli ac Pacis (1625), he acknowledged the absolute powers of the king as a sovereign ruler, but argued that the king should be guided by principles of Natural Law in exercising them. In his view, the state was built upon a universal human society which exists already in nature: the state is an association of free men, joined together for the enjoyment of rights and for their common interest. According to Grotius, the law of nations should, as far as it’s appropriate, maintain and supplement the Law of Nature in matters of mutual interest of nations, either through observance of customs common to many nations or through particular treaties and contracts. His concept of sovereignty was very much a Eurocentric one – a concept considered to be applicable to Christian States only, not covering the newly discovered territories.

Emerich de Vattel elaborated Grotius’ notion of sovereignty in his treatise – Droit des Gens (1758). He based it on positive law, as exemplified in treaties and state practices, rather than on natural law. He emphasized the principles of sovereign equality, the independence of all sovereign nation states and on the consent of nations as the determining criterion for what is the rule of International Law. Thus, he introduced a new concept of International Law in which the sovereign state is the sole and only subject of the law of nations i.e. the individual being only its object, even that, indirectly.

Various writers, in particular French philosophers, have elaborated on these ideas. They gave rise to a wide variety of theories, which inspired and were in turn influenced by the revolutions spreading over Europe in the 18th and 19th Centuries. Locke, in his Two Treaties on Government (1689), was the first writer to introduce the doctrine that state itself is the original sovereign, and that all supreme powers of the government are derived from the sovereignty of the state.

In contrast, Rousseau stated in his Du Contrat Social (1762) that the only legitimate sovereign are the people, while the state is the result of a revocable contract concluded between the people and those who exert power in the state. The basis of this ideology has had an important influence on modern state formation, both in developed and developing economies.  It is also echoed in such popular slogans as the state should serve the people and not the other way around and the state is for man, not man for the state.

Marx and Engels also focused their political ideas on the nature of state and sovereignty. On the one hand they further developed the notion of the independent state on the idea of sovereignty of the people. As regards the latter, they stressed that one should first identify different classes of people; at a certain stage of its development, the state should exclusively identify itself with the interests of a certain class, i.e. those of the proletariat. They introduced the concept of Proletariat State as opposed to Bourgeois State. Thus, the proletariat becomes the class representative of the nation. So, internally, sovereignty thus meant proletarian supremacy. Externally, it meant independence from capitalism. Consequently, in the soviet perspective, only socialist states could be truly sovereign. In order to maintain this status all socialist states could be truly sovereign. Moreover, in order to maintain this status, all socialist states should have a close alliance with the then USSR (even if, at times, this amounted to forcefully compelling a sister country to limit its sovereignty).

No matter whether we deal with the Western Bourgeoise State, the Socialist/Proletarian State or with that of the Third World or newly independent states,sovereignty of states has evolved as the grand rule of Public International Law and is the dominant feature of the organization of the international system. It is now commonly understood that the sovereignty of the state does not arise from any divine power, status strength, but from delegation of power by the people to the state. In modern political systems, state power is balanced by separation of powers, increasingly in the form of a constitutional state along the line of Montesquieu’s doctrine. An interesting debate is currently underway about whether or not the right and duty to democracy is emerging under International Law.


Forms of Sovereignty in International Law

Sovereignty is a multifaceted concept. Schwarzenberger discussed six main forms of sovereignty:

Internal or Territorial Sovereignty

    At present, (apart from some international areas, such as the high seas, the deep sea-bed and perhaps Antarctica) our planet is legally divided into approximately 200 sovereign states. Within its own territory, each of these states is exclusively sovereign, in the sense that it has “exclusive competence” or “domestic jurisdiction” and the monopoly of power over its territory and nationals. It was observed that sovereignty, in regard to a portion of the globe, is the right to exercise therein the functions of state, to the exclusion of any other state i.e. territorial sovereignty involves the exclusive right to display the activities of state.

     

    External Sovereignty

      The state is externally sovereign, in the sense that it is not subjected (against its will) to another state or to any higher authority. International Law, however, imposes certain limits to both the internal and external aspects of sovereignty of states. The most important ones are formulated in the UN Charter and the 1970 Declaration on Principles of International Relations. They include the obligation that states, in their international relations, shall refrain from threatening or using force, oblige to co-operate with one another, abide by the principles of equal rights and self-determination of peoples.

       

      Sovereign Equality

        All states are juridically equal, in the sense that, formally they have identical rights at the international level. Both the League of Nations and the United Nations have been established as inter-governmental organizations based on the sovereignty of the member states. The main aims of these two organizations were, in fact, the protection of political independence of their members and, thus, maintain the status quo. In the U.N. Charter, this is enshrined as its very first principle, despite the fact that the U.N. Security Council, acting under Chapter VII, can impose binding decisions on member states even against their will.

         

        Extraterritorial Sovereignty

          In the 19th Century, some Asian and African states were forced to sign capitulation treaties with European states, whereby European nationals and their property were made immune from local authority and jurisdiction. In this way, the European states could directly protect the lives and properties of their nationals abroad. Thus, European states deprived African states of accomplishing one of their international functions; which is that of protecting the life and the property of nationals of other states within their territories.

          Whereas the days of this kind of capitulation are definitely over, some African states have tried in recent years to impose their home policies on foreigners and their properties. Reference can be made to Anti-Trust Laws and Export Administration Regulations. Through these laws, the U.S., for instance, seeks to extend its jurisdiction to foreign subsidiaries of U.S. companies. This has seldom caused friction with other (sovereign) states. An example is the so called Russian pipeline affaire, [the 2003 French fries affaire. After the invasion of Afghanistan by the former U.S.S.R. in December 1980, the U.S.A. sought to prevent subsidiaries of American companies in a number of European countries, including the Federal Republic of Germany, and the Netherlands took a different stand, which led to conflicts of jurisdiction.


          Permanent Sovereignty over Natural Resources


            It is a well-established principle of International Law that every state can freely dispose of the natural wealth and resources within its territory a principle which is commonly known as permanent sovereignty over natural resources. From this principle some important state rights arise, including the right to regulate entry and operations of foreign investors and the right of the state to pursue its own social-economic and environmental policies. Yet, it is increasingly recognized by the principles of international law that these rights have duties as their corollaries. These entail, among wealth and resources, due care for the environment, and equitable use and management of trans-boundary resources.

            In comparison with the 1919 Covenant of the League of Nations, the UN Charter gave rise to a dilution of some aspects of sovereignty. Reference can be made to:

            a) decision-making by a qualified majority in both the General Assembly and the Security Council (Arts. 18 and 27 of the Charter) as opposed to the Unanimity Rule of the League (cf. Art. 5 of the Covenant);

            b) the allocation of permanent seats and the right of veto to the five Great Powers in the Security Council;

            c) the collective security system, by which the UN Security Council, acting under Chapter VII, can impose binding decisions on member states, even against their will; and

            d) the duty of states to co-operate for the achievement of respect for human rights, social-economic development, etc. (cf. Chapter IX) notwithstanding the domestic jurisdiction clause as included in Article 2, Paragraph 7.

            To sum up, more attributes of states can be and is, more often than not, supplied with further designating attributes such as national flag, national anthem, national emblem, national currency and other national symbols. The whole purpose is designation of a state in the international community and signifying the creation of nation-statehood in the heart and minds of people. It is as well a mechanism of reaction enhancement and/or assertion of the feeling of nationalism, the significance of which the lowest denomination is the individual, be that physical or juridical.


            Sovereignty as a Dynamic Concept


            The changes in the theory and practice of sovereignty, as they evolved in the past, are a reflection of the changing functions attributed to sovereignty and the state in a given period. Historically, for example, attempts to impose order on Western Europe led to assertive interpretations of sovereignty. They altered during periods of peace, allowing more democratic versions of state sovereignty to take root. In the same vein, the United Nations was established in 1945 as an organization based on sovereign equality of all states, albeit some states were ‘more equal’ than others.

            However, soon efforts were made to promote a gradual evolution of the United Nations from an organization based on sovereignty of states towards an organization representing the common interests of all states and peoples, as exemplified in among other things the human rights codification movement. However, as a result of Cold War rivalry and the decolonization process, sovereignty maintained its predominant place in international relations.

            For the socialist countries sovereignty served in their relations with the non-socialist world as the underlying principle of sovereign equality and non-intereference. In socialist international relations it provided the legitimization for close alliance with and support to USSR, and for maintaining, if necessary by armed force (Hungary, Czechoslovakia, Afghanistan), a cordon sanitaria of communist regimes on the USSR border. For colonial peoples and newly independent states it served as the legitimization of their struggle against metropolitan states and as a legal shield behind which they could develop their societies as they wished. Glory calls this particular function of sovereignty ‘son role protector’ and ‘un instrument de defense’.Western States also cherish their sovereignty and prove to be anxious to maintain essential parts of it in integration processes such as the European Union (E.U.). Especially illustrative is the search for a balance of power between the EU and its member states on the basis of the ‘principle of subsidiary’, according to which the factions are complementary to those of lower levels.

            At normative and practical levels states have accepted many restrictions. By ratifying or acceding to the Non-proliferation Treaty or the chemical weapons convention, states have accepted certain limitations to their freedom of armament and obligations relating to arms control and disarmament. The human rights covenants and related human rights instruments, as well as customary international law, prescribe for states a certain standard of treatment of their citizens. Compliance with such human rights standards is no longer a matter within the domestic jurisdiction of a state but widely recognized as an obligation erga omnes. In the field of international environmental regulation, law-making has progressively developed, as may be illustrated by the number of treaties concluded in recent decades. A central principle, embodied in the well-known principle 21 of the Stockholm Declaration, is the sovereign right of states to exploit their own environmental policies. However, it is qualified by the obligation not to cause any extraterritorial environmental harm (sic utere tuo ut alienum non leadas). In nearly identical words this is repeated in principle 2 of 1992 Rio Declaration. This and other principles reveal that sovereignty does not only give rise to state rights but to state obligations and responsibilities as well.

            Conclusions and final observations made since the mid-1970s demonstrate the factual erosion of the traditional concepts of state sovereignty.  Thus, equated as it is with non-interference, domestic jurisdiction and discretion in the legal sphere has become increasingly real, as it is interdependent on many different levels; thus, effectively eroding – in practice and perhaps even legally – the sovereignty of states.

            Dependence matches in many respects independence, its counterpart. Economic and energy crises, pollution, accidents with nuclear energy plants, desertification, deforestation, trans-boundary acid rain and damage to the ozone layer, all provide compelling evidence of the fact that states are no longer masters of their own destiny. As a result of the completion of the decolonization process, the revolutionary developments in Eastern Europe and the détente in East-west relations, the political climate has become more conducive to recognizing and responding to such facts. It also provides a room for creative thinking on the relevance of the principle of self-determination in a non-colonial context.

            Interdependence requires new rules of international law, regulating inter-state relations in terms of efforts to co-operate towards the solution of global problems. This introduces the notion of ‘relative sovereignty’ discarding ‘absolute sovereignty’, while others refer to ‘fundamental’ or even ‘planetary sovereignty’ or ‘global soverignty’.

            Is sovereignty losing relevance in practice and is centralized authority going to be vested in transnational institutions? Such a conclusion seems to be too farfetched. On the contrary, there is every reason, in a world in turmoil and with a poor level of international organization, to emphasize the continued value of the principle of sovereignty of states for the organization of national political and economic life and as the framework for accountability of states at the international level. The challenge is to ensure human rights, good governance and the duty to pursue sustainable development at national and international levels, and in this way to best serve the interests of the present and future generations of humankind.

            This might well lead to re-interpretation of some of the traditional connotations of state sovereignty. It can no longer be equated with unfettered freedom of action and is bound to become interpreted in functional sense. Layers of international law, especially in the field of human rights and environmental protection, increasingly crisscross territorial boundaries.

            Consequently, international law and organization are progressively developing into a direction where Article 2.7 of the UN charter (range of ‘matters which are essentially within the domestic jurisdiction of any state) is becoming increasingly qualified. At the same time, it is obvious that sovereignty will not wither away. Ever since the peace, sovereign states continue to be the principal actors in international relations, will be essentially different in the next century.) It is not the existence of sovereignty as principle of international law which is at stake, but rather what sovereignty represents in changing world.

            Can we then say the polity exercised over the individual is an important factor in the determination of statehood? If you say yes even with a certain degree of reservation then your proposed world naturally newer to appraise the basic prickles bent on behind the law of nationality and citizenship.


            The Concept of Nationality

            Nationality of an individual is his quality of being a subject of a certain state. Hence, it is one of the attributes given to a physical person. It owes its origin in the notion of allegiance given by the subject to the king. Accepting the protection of a state actually required owing allegiance to it.

            It is not for International Law but for the Domestic Law of each state to determine how one is given the status. While it is for each state (state – as understood in international law) to determine under its own law who are its nationals; such a law can only be recognized by other jurisdictions only in so far as it is consistent with international conventions, customs and to the principles of law generally recognized with regard to nationality. The following succinctly illustrates this dictum:-

            “Although it is for the international law of each state to determine who is and who is not a national of the state it is nevertheless of legal and practical interest to a certain how nationality can be acquired under such laws. The five most common modes of acquiring nationality are birth, naturalization, reintegration, annexation and cession. No state is obliged to employ all five, but in practice they usually do so. Acquisition of nationality by birth Nationality is normally acquired by birth; the vast majority of people acquire nationality by birth, … Some states make parentage alone the decisive factor (ius sanguins), so that a child born of their nationals becomes ‘ipso facto’ by birth their national likewise, be the child born at home or abroad; under such a rule illegitimate children usually acquire the nationality of their mother. Other states make the territory on which birth occurs the decisive factor (ius soli). According to this rule, every child born on the territory of such a state, whether the parents are citizens or aliens becomes a national of such state, whereas a child born abroad is foreign although the parents may be nationals. Many states including the United Kingdom adopt a …”

            This does not, however, imply that such a status will be recognized by all states; nor can it be challenged by international tribunals. What one can say in this respect is that the document issued by the state, evidencing nationality, exerts a very strong presumption, debatable though.

            State domestic law may also make distinction between and among different kinds of nationals. Those who enjoy full personal and political rights may, on these accounts be designated as citizens – as is the case in the U.S.A. and India. Nationality is, thus, a legal quality that connects the individual to the state. It also links the individual to international law, as these cases fall under Private International Law (conflict of laws).


            Questions that matter

            To what do you attribute the Ethiopian Law of Person – making distinction between and among domiciliary, permanent and temporary residences and the like? Similarly, what does the law attribute to corporate bodies – i.e. Ethiopian State and Government, political parties, churches, mosques, civil associations including NGOs and properties with specific destination like endowments and trusts; and business and commercial organizations?

            Just as international law applies to individuals by virtue of the bond created between nationals – he or she – and the state, corporate entities too have nationality. The basic principle as articulated by ICJ is that the right of corporate entity that is attached to the state under the law of which it is incorporated and in whose territory it has its registered office. Of recent the instance of substantial connection and such similar considerations have however been found diffusing determination of jurisdiction solely on the basis of the principles of incorporation and registration ay will be regarded as the traditional rule. It is perhaps no more than a prima facie pre-empts yard stick which affords a convenient starting point for inquiry in any particular case. Attributes of states can be and is, more often than not, supplied with further designating attributes such as national flag, national anthem, national enable, national currency and other symbols. The whole purpose is designation of a state in the international community and reaction of statehood in the hearts and minds of people; it is a mechanism of reaction enhancement and/or assertion of the feeling of nationals, the significance of which will be discussed in Chapter II. Nationality, as such is an attribute of personality. It is also a quality of the state as consisting of a community of people of which the lowest denomination is the individual, be that physical, juridical, etc…

            Last modified on Wednesday, 02 May 2012 13:05