What really is state Sovereignty?

| by Dr. Ruwantissa Abeyratne

Sovereignty in international law is the right to exercise the functions of a State to the exclusion of all other States in regard to a certain area of the world.

(October 12, Montreal, Sri Lanka Guardian) Every now and then, particularly when there is a claim that a State’s sovereignty has been violated (which mostly happens when aircraft of a foreign State allegedly enter sovereign airspace without the host country’s permission), we are tempted to use the word “sovereignty” in a protective and exclusionary sense. At most times we are correct. International law is founded on the concept of the State which in turn functions on the foundation of its sovereignty. A State, according to the Montevideo Convention of 1933 is defined as having the following characteristics: a permanent population, a defined territory, a government, and a capacity to enter into relations with other States. Sovereignty stands for the supremacy of the State as a legal person which inter alia has the supreme power to make and administer laws. Sovereignty has two attributes:

a) internal sovereignty, whereby a State exercises its exclusive right and competence to determine the character of its own institutions and to provide for their function. Internal sovereignty also includes the exclusive power of a State to enact its own internal laws and to ensure their respect; and

b) External sovereignty, whereby a State freely determines its relations with other States or entities without the restraint or control of another State.

Justice Huber noted in the Island of Palmas case (1928) that sovereignty in relation to a portion of the surface of the globe is the legal condition necessary for the inclusion of such portion in the territory of any particular State.

Ian Brownlie, Professor of International Law at Oxford University cites the principle corollaries of the sovereignty and equality of States as: a jurisdiction, prima facie exclusive, over a territory and the permanent population living there; a duty of non-intervention in the area of exclusive jurisdiction of other States; and the dependence of obligations arising from customary law and treaties on the consent of the obligor.

Sovereignty in international law is the right to exercise the functions of a State to the exclusion of all other States in regard to a certain area of the world. A more modern view is that which is taken by Brownlie (cited above) who, in his book Principles of Public International Law states that the term sovereignty is synonymous with independence. Article 2.4 of the United Nations Charter exhorts all members of the United Nations to refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations. In keeping with this fundamental premise, the 1965 Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States emphasized that no state has the right to intervene, directly or indirectly, for any reason whatsoever, in the internal or external affairs of any other State. The Declaration went on to say that consequently, armed intervention and all other forms of interference or attempted threats against the personality of the State or its political, economic and cultural elements, are condemned. This principle was reaffirmed in the 1970 Declaration on Principles of International Law contained in United Nations General Assembly Resolution 2625.

The principle of non-intervention enunciated in the Declaration can be seen in a much earlier pronouncement, made by the International Court of Justice in the Corfu Channel Case where the Court, referring to a claim by the British Government that it acted in accordance with the right of intervention in mine-sweeping the Channel, said “the alleged right of intervention was the manifestation of a policy of force, such as has, in the past, given rise to most serious abuses and such as cannot…find a place in international law”.

The principle of non-intervention is part of international law and is based on the recognition of the territorial sovereignty and integrity of States. Intervention is not permitted at international law if such adversely affects the free choice of States made by virtue of State sovereignty. Intervention becomes unacceptable when it restricts free choice of a State.

The above notwithstanding, it is incontrovertible that sovereignty is no longer an absolute concept that would shield States against any internal acts of aggression or irrationality against its citizens. Sovereignty can therefore no longer be accepted in the international for a as seen an absolute protection against interference. It is no longer an absolute right but a charge of responsibility on a State where it e is accountable to both domestic and external constituencies. A Brookings Institute study has recently revealed that in internal conflicts in Africa, sovereign states have often failed to take responsibility for their own citizens' welfare and for the humanitarian consequences of conflict, leaving the victims with no assistance. Therefore, what is needed is a delicate balance between respect for State sovereignty and protection of the citizenry against arbitrary and capricious acts of States.

Generally under legal theory, each State is sovereign and equal and the term sovereignty may be used as a synonym for independence. However, in modern parlance, with the rapid growth in telecommunications and global competition and rivalries, no State can be entirely sovereign to the exclusion of others. Today, the words “sovereignty” and “intervention” tend to be interlinked in practice. J.G. Starke, a leading authority on international law states: “the principle of sovereignty to accommodate external involvement by a State in the affairs of another in special circumstances: ..."Sovereignty" has a much more restricted meaning today than in the eighteenth and nineteenth centuries when, with the emergence of powerful highly nationalised States, few limits on State autonomy were acknowledged. At the present time there is hardly a State which, in the interests of the international community, has not accepted restrictions on its liberty of action. Thus most States are members of the United Nations and the International Labour Organization (ILO), in relation to which they have undertaken obligations limiting their unfettered discretion in matters of international policy. Therefore, it is probably more accurate today to say that the sovereignty of a State means the residuum of power which it possesses within the confines laid down by international law. It is of interest to note that this conception resembles the doctrine of early writers on international, law, who treated the State as subordinate to the law of nations, then identified as part of the wider law of nature”

If Starke is right, and sovereignty is the residuum of power within the parameters prescribed by international law, and most States circumscribe their actions in the interests of the international community, then no State has the moral right to reject the collective will of the international community with regard to its internal acts if they jeopardise the populace within that State. At the same time, the international community cannot expect to claim the right to arbitrarily intervene in the internal acts of a State unless there is overwhelming consensus within that community. This is a delicate balance of diplomacy best left to seasoned diplomats.