Reflections on Sovereignty
Discussions about the war in Ukraine inevitably include discussions of sovereignty. One one side, it is argued that sovereignty is not absolute and other countries can have legitimate security concerns, on the other side, it is argued that Ukraine is a sovereign country and it can do what it wants without regard for what other countries wish. This is an absolute right, a la divine right of kings.
From my common sense lay person’s perspective, absolute unconstrained sovereignty does not seem right. The freedom of individuals is not absolute. As individuals we live in a social world, where inevitably we interact with other people, our neighbors. There is no unlimited freedom, no world where we can live by the motto, “no one tells me what to do”. The fact that we are immersed from birth in a social world is why our freedom is necessarily restricted. There are traffic rules, zoning rules, property rights, that enable automatized individuals to live in proximity to one another. Even in the best of freedom cases, you don't get to yell fire in a crowded theatre.
It seems similar in international relations. States too do not exist in an isolated world, automatized entities separate from every other country. States exist in a neighborhood, generally bordered by other states on land or water. Natural features such as rivers connect countries, as do cultures and religion. As the poet might say, “no country is an island, entire of itself”. And the reality, much as one wishes that it were not so, is that the strong tend to influence the weak to their desires.
When one turns to the legal literature and that of political philosophy, one enters a more rarefied world. It is like entering the world of Plato and medieval scholastic philosophy, where one argues about the ontological status of concepts such as sovereignty.
In more legal and philosophical term, sovereignty is the exercise of supreme authority over some polity, Per Wikipedia, “In any state, sovereignty is assigned to the person, body or institution that has the ultimate authority over other people and to change existing laws. In political theory, sovereignty is a substantive term designating supreme legitimate authority over some polity. In international law, sovereignty is the exercise of power by a state. “
Here we see two aspects of sovereignty, one inward facing, the other outward facing. The inward facing one concerns the legitimacy of whoever is in control of the state and how they exercise that power (sometimes termed empirical sovereignty). “In any state, sovereignty is assigned to the person, body or institution that has the ultimate authority over other people and to change existing laws.” I would add, “and to force compliance with those laws”. Here this sovereignty can be de facto and/or de jure.
The other outward aspect, termed state sovereignty or judicial sovereignty, refers to the recognition by other powers of the rights to control internal affairs without interference. This is the last of four generally recognized criteria of state sovereignty: defined territory, a permanent population within that territory, an authority that can impose its will and recognition by others. This last, the requirement that it be recognized by other sovereign, makes it a social construct. Does sovereignty exist if no one recognizes it? This importance of recognition by other states is exemplified in Kosovo, Somaliland, and Taiwan.
There is another theory of statehood, the declarative theory, best articulated in the 1933 Montevido Convention of Rights and Duties of States. Article 3 states that” "the political existence of the state is independent of recognition by the other states."and the criteria for recognition by other states is replaced by the capacity to enter into such relations: “(a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with other states”. (Note that here the term used is state rather than sovereign entity but the meaning is equivalent). Article 3 further states that “The exercise of these rights has no other limitation than the exercise of the rights of other states according to international law.”
This definition creates a platonic ideal of a state/sovereign entity, and finesses the criteria for governance in case of a conflict: is it the one who has de jure control of a population, or who has de facto control? Who or what decides? And what is the capacity to enter into relations with other states, if that capacity is denied by other states? Rhodesia and Northern Cyprus are examples of states not generally recognized as states. Another example was the People’s Republic of China which was progressively recognized as the government of China instead of the Republic of China centered in Taiwan.
It thus seems that recognition by other states is at play both in recognizing that an entity is a sovereign state and in recognizing who exercises sovereignty within that state. For example, in Venezuela the United States has attempted to recognize the exercise of sovereignty in the person first of Juan Guaido (who never ran for president) and more recently Edmundo Gonzales, an unelected opponent of president Maduro. (technically by the criteria of Montevido, the United Stated and other countries were interfering in the internal affairs of another state by not recognizing the election).
1.No State has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any State….
2.No State may use or encourage the use of economic, political or any other type of measures to coerce another State…Also, no State shall …interfere in civil strife in another State.
5.Every State has an inalienable right to choose its political, economic, social and cultural systems, without interference in any form by another State.
. In Syria, the overthrow of the Assad government by al-Qaeda related elements has left a period of uncertainty while the new regime is being increasingly recognized. In fact since 2012 the US has recognized not Assad but the National Revolutionary Coalition as the “legitimate represeetnative “ of the Syrian government. This is the opposite of the situation in Afghanistan, where the ruling Taliban are not recognized by the United States. One sees that the recognition or non-recognition of sovereignty becomes a weapon to influence the internal affairs of that country, despite the fact that this directly contradicts United Nations declarations
1.No State has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any State. Consequently, armed intervention and all other forms of interference or attempted threats against the personality of the State or against its political, economic and cultural elements, are condemned.
Thus in opposition to the declarative idealistic theory of state sovereignty, there is a more social interpretation of sovereignty, what one may call a more realistic interpretation. An exgtreme transactional articulation of it by Immanuel Wallerstein states: “Sovereignty is a hypothetical trade, in which two potentially (or really) conflicting sides, respecting de facto realities of power, exchange such recognitions as their least costly strategy.”
The next question is whether, once recognized, state sovereignty is absolute or not and if so the degree of absoluteness. The one obvious constraint is international law and treaties, whereby a state agrees to limits on its absolute sovereignty. Indeed the Montevido Convention importantly states, article 3, “The exercise of these rights has no other limitation than the exercise of the rights of other states according to international law” and generally accepted conventions, for example, exclusive economic zones in the sea, which facilitate living in the same globe. Treaty approved limits on sovereignty may be severe. For example, NAFTA has provisions for investor-state arbitration which significantly impact state sovereignty when enacting laws that may affect investments by foreign entities.
The view of absolute sovereignty is popular in the United States and has been for centuries, with the Senate refusing to take up treaties that would impose limits on US sovereignty such as the Versailles Treaty of 1919. The US prioritizing its own absolute sovereignty has led it to pass laws explicitly denying the jurisdiction of international courts, notably the American Service-Members' Protection Act, known informally as The Hague Invasion Act. This act states that “The President is authorized to use all means necessary and appropriate to bring about the release of any person described in subsection (b) who is being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court.”
The absolutist case for state sovereignty finds some support in the UN charter and subsequent resolutions. Paragraph 4 Article 2 Chapter I of the Charter of the United Nations all sovereign states "shall refrain in their international relations from the threat or use of force against . . . any state." Paragrpah 7 states that “Nothing contained in the present Chapter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the members to submit such matters to settlement under the present Charter.”
This was further developed by the UN Assembly unanimous vote for the 1965 Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of States and the Protection of Their Independence and Sovereignty. The text states
1.No State has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any State. Consequently, armed intervention and all other forms of interference or attempted threats against the personality of the State or against its political, economic and cultural elements, are condemned.
No State may use or encourage the use of economic, political or any other type of measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights or to secure from it advantages of any kind. Also, no State shall organize, assist, foment, finance, incite or tolerate subversive, terrorist, or armed activities directed towards the violent overthrow of the regime of another State, or interfere in civil strife in another State.
This statement was the basis for the International Court of Justice decision against the US for its actions against Nicaragua including mining its harbor and would seem to undercut attempts to limit Iran’s acquisition of nucleur weapons. In fact, the texts clearly seem to indicate that economic and other sanctions against countries are an infringement on their sovereignty.
On the other hand sovereignty is not absolute. The UN charter (Chapter 7 article 39) reserves to itself the right to act if “the Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.” By the UN charter, international actions need to be approved by the United Nations in order to be legitimate.
Questions have arisen when it appeared that genocide, crimes against humanity, war crimes, and mass expulsions appeared to be taking place, and stopping them was invoked as justification for unilateral action, for example in the 1998-1999 NATO intervention in Kosovo. In that case the International Court of Justice rejected this unilateral justification and declared that there was no legal justification under international law for unilateral action and that it was the special responsibility of the Security Council to approve any action. Otherwise states interventions could be camouflaged by the self-serving rhetoric of defending "the oppressed craving for freedom".
From all this so far we see that states exist in a system of international relations which recognizes their sovereignty and embeds them in an international community with established rules, procedures and institutions. We also see that in reality states interact with each other in more direct and often more confrontational manners than this idealistic description depicts. The most notorious example of these in recent times was the United States blockading Cuba over its importation of nuclear capable missiles.
More recently limitation on sovereignty have increased with the concept of restrictive immunity. With absolute immunity the state has supreme authority within its boundaries and is immune from prosecution by foreign states in the foreign state’s domestic courts. With restrictive immunity jurisdictional immunity is explicitly limited “to public acts, but not private or commercial ones, though there is no precise definition by which public acts can easily be distinguished from private ones.” These have been instituted by statute in the United States, Canada, Singapore, Australia, Pakistan and South Africa.
The United States codification of this gives potentially broad scope to application of US law to actions of foreign citizens or governments, given the flexibility with which entities can be labelled as terrorist.
“1605(a)(5) - money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state”
“1605B - money damages are sought against a foreign state for physical injury to person or property or death occurring in the United States and caused by (1) an act of international terrorism in the United States and (2) a tortious act or acts of the foreign state, or of any official, employee, or agent of that foreign state while acting within the scope of his or her office, employment, or agency, regardless where the tortious act or acts of the foreign state occurred.”
These are the basis for the court actions within the US that are attempting to impound Afghanistan government money to pay relatives of victims of 9/11, and that have entrapped Australian citizen Julian Assange and the Chinese executive of Huawei Meng Wanzhou in the extraterritorial application of US law.
So what are we to make of sovereignty after these reflections? Although in the idealized world sovereign states operate in the immutable manner of Newtonian physics, in reality their sovereignty is more nuanced and conflicted, more akin to quantum mechanics and the uncertainty principle enshrined in the metaphor of Schrödinger's cat. As we’ve seen from the above examples, in practice states cannot escape limitations on their sovereignty because the recognition of sovereignty is a social construct. States are enmeshed in a network of relationships with other countries that de facto limits their sovereignty whether these are codified by international law, the result of custom or due to the play of unequal forces.