| by Dr. Ruwantissa Abeyratne
( December 31, 2012, Montreal, Sri Lanka
Guardian) If 2011 was the year of people power, and 2012 was the year of
elections, regime change and the development of economies, 2013 could well be
the year of the double whammy – an year of international relations,
responsibility and accountability and the year of doing more for people. Central to this dimension, 2013 will surely
carry with it the legacy of December 2012, which marked dastardly crimes in the
United States and India, the most number of civilian deaths in Syria in one
month and numerous explosions in Asia that killed hundreds of people. The year
would surely call governments to show
more responsibility towards protecting their people economically and ensuring
their safety, as was amply demonstrated by the gun law debate and the fiscal
cliff (or fiscal ledge as those more sanguine among us would like to call it) in the United States;
the call to curb corruption by the new Chinese Administration; and the
relentless call by the Indian people that the government should do more to
protect Indian women from public and domestic violence.
There will be sustained discussion on the
international front on sovereignty, starting from the possible overthrow of the
current regime in Syria, or in the least a political solution to the ongoing
carnage there, involving political intervention and negotiation (although, as
an extreme measure, military intervention cannot be ruled out). The relevance
of sovereignty will extend to the future of Catalonia as a separate State and a
few tiny petroleum and marine resource filled islands between Japan and
China. Although the United States will
be embroiled, at least in the first
quarter of 2013, in its domestic
economy, it is difficult to imagine President Obama not actively involving
United States foreign policy in international affairs, particularly in the
Middle East and South East Asia.
In the context of international relations,
the key contentions will involve Iran and North Korea, with regard to their
rapidly growing nuclear programmes and launch capabilities. Both countries have
repeatedly claimed that they are exercising their sovereign rights and what
they do is of purely domestic concern and that they do not intend encroaching
on world peace or the right of other nations to exist peacefully. The concern of the rest of the world would be
the extent to which these two countries would pose a threat to global peace and
harmony, and to what extent external intervention would be necessary to
maintain global peace. Israel stands in
between these two ideals, precariously placed with regard to Iran and debating
whether it should engage in pre-emptive and preventive strikes against
Iran. Of course, on the table for
consideration is the legal dichotomy – whether Israel has the right to attack
Iran, seemingly flouting Iran’s sovereignty, or whether Israel should stand by
and see the wellbeing of its people being threatened, as it claims.
Another issue that has confounded
international lawyers is one which involves the operation of drones, which
stealthily encroach another country’s airspace and indulge in air attacks
against that country’s people who are known to be or at least perceived as
terrorists who threaten the security of the world.
The central issue for 2013 would therefore be
the extent of sovereignty of the people of a State and their right to be
protected from the rest of the world and, as the month of December 2011 showed,
from themselves. The central theme for the year would be the extent to which a
State is bound to protect its people from the outside world and from
themselves.
With regard to what a State constitutes at
law, The Montevideo Convention of 1933
in its Article 1 provides that a State as a legal person of international law
should possess: a ) a permanent
population; b ) a defined territory; c ) government; and d) capacity to enter
into relations with the other states.
Jurists have argued that this list is not exhaustive and that the four
elements themselves have to be further elaborated. Accordingly, it has been said that “a
permanent population” should essentially connote a stable community, the
absence of which in a given territory would effectively preclude that territory
from being designated a State at law.
With regard to “defined territory” the acceptable notion is that it must
be politically controlled by the stable community mentioned above. By “government” is usually meant a defined
legal order that has the three separately identifiable factors of the
legislature, judiciary and the executive.
Sovereignty has two attributes:
· 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
·
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 1928 Island of Palmas case that
"sovereignty in the relations between States signifies independence.
Independence in relation to a portion of the globe is the right to exercise
therein, to the exclusion of any other State, the function of a State. The development of the national organization
of States during the last few centuries and, as a corollary, the development of
international law, have established this principle of exclusive competence of
the State in regard to its own territory in such a way as to make it the point
of departure in settling most questions that concern international relations.
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”.
Brownlie, 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.
Article 51 further qualifies this provision
when it says:
“Nothing in the present Charter shall impair
the inherent right of individual or collective self-defence if an armed attack
occurs against a Member of the United Nations, until the Security Council has
taken measures necessary to maintain international peace and security. Measures
taken by Members in the exercise of this right of self-defence shall be
immediately reported to the Security Council and shall not in any way affect
the authority and responsibility of the Security Council under the present
Charter to take at any time such action as it deems necessary in order to
maintain or restore international peace and security” .
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.
Starke is inclined to stretch 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 nationalized 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".
As early as 1949, in its Report to the
General Assembly, the International Law Commission recommended a draft
provision which required that:
“ Every State has the duty to conduct its
relations with other States in accordance with international law and with the
principle that the sovereignty of each State is subject to the supremacy of
international law”.
United Nations Secretary General Kofi Annan
in defining sovereignty said:
“State sovereignty is being redefined by the
forces of globalization and international cooperation. The state is now widely
understood to be the servant of its people, not vice versa. At the same time,
individual sovereignty --the human rights and fundamental freedoms of each and
every individual as enshrined in our Charter-- has been enhanced by a renewed
consciousness of the right of every individual to control his or her own
destiny”.
Sovereignty technically precludes
intervention by one State in the affairs of another. 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.
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.
Under these circumstances, 2013 would surely
be the year of State responsibility and accountability.
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