by Faisal 0. Al-Rfouh,
associate professor, political science, University of Jordan
President Gandhi Center for Strategic Studies (GCSS), NGO
Compatibility between sovereignty and international law entails that sovereignty comprises certain legal rights, which are conferred upon a state by international law. These sovereigns assume significant rights in two ways. First, these sovereign rights deal with matters, which constitute the raison d'etre of the state and enable the latter to pursue activity in the international context. Second, these rights provide a legal edifice for this activity thereby enabling the states to conduct their affairs in a legitimate manner. Construed in this sense, sovereignty can be equated with legal independence in the sense that it entails the legal powers, which are sine qua non for a state to conduct its affairs in the international comity of nations.
Until the closing part of the nineteenth century Vattel and other jurists adhering
to the natural law school had held that membership of the comity of nations
conferred upon the member states what were called the sovereign rights of states.
It was further opined that these sovereign rights were essential, absolute,
and self-evident, since the international community comprised sovereign states
and these rights were inherent in the very nature of such states. These rights
were indispensable and to be preserved even by war, as without them, no sovereign
state could survive.1 Other rights enjoyed by the states were regarded as secondary.
During the early phase of the twentieth century, there prevailed conflicting
opinions amongst the jurists regarding the meaning and classification of the
sovereign rights of a state. However, there was general agreement on some distinct
rights which interalia included; the right to existence, to independence, to
equality, to respect, and to territory. Some jurists regarded these rights as
absolute and inalienable. While other jurists who took a realistic view had
opined that although during the past these rights had come to be regarded as
essential conditions of the membership of the international community hence
there was no need to assign to them an absolute and inalienable character. Oppenheim
even argued that the notion of sovereign or fundamental rights should be excluded
from Law of Nations.
However, the practice in vogue, as applied by the states, has been to accord recognition to the rights of states, which came into existence by virtue of custom or as a sequel to treaties between states. In other words, the rights and duties of states must be those agreed to and consented by other states or stipulated by international law. The Montevideo Convention of Rights and Duties of states adopted in 1933 was the first authoritative declaration by American states on the subject of fundamental rights and duties of states. The Convention interalia declared2:
(a) the political independence of states was independent of recognition and that the recognition merely signified the acceptance of international personality
(b) that the states were judicially equal
(c) that the fundamental rights of states were not susceptible of being affected in any manner and states possessed them by virtue of their existence as states
(d) that no state has the right of intervention in the internal or external affairs of other states3
Before this declaration of the Montevideo Convention of American States could
become universally acceptable and applicable, there broke out Second World War
(1939–45). It was only after the adoption of the Charter of the United
Nations in October 1945 that the controversy surrounding as to what were the
fundamental rights of states came to an end. The UN Charter accorded recognition
to the following principles as sovereign rights of a state: (a) sovereignty,
(b) equality of state, (c) non-interference in the domestic affairs of other
states, and (d) the self-determination of peoples. Incidentally, the UN Charter
has also specified matching duties of the states which interalia include: (i)
non-interference in domestic affairs of other state, (ii) settlement of disputes
by peaceful means; and (iii) refraining4
from threat or use of force by states.4
According to Starke the rights and duties of states are5 correlated, it implies that right of one state entails a corresponding duty on the part of the other state. Thus, relation of one state to other states or to international community has assumed significance under the UN Charter because it has laid down rules governing such relationship. In other words, the principles enshrined in the UN Charter and other norms, which have developed in the post-Second World War period in the international law, have their bearing on the conduct of relations between states or members of the international community. It is in this backdrop that the sovereign rights of a state are briefly analyzed here.
RIGHT OF EQUALITY
In the wake of the proclamation in the UN Charter of the "sovereign equality"
of states, the principle of equality of states has become an integral part of
international law. The assumption that all the states are equal entails that
all the subjects of international law enjoy equality, one with another. Equality
here means equality before law or equality of legal status. However, it should
not be construed in the sense of a "physical capacity" for rights.
In international law, states having variable sizes, strength, and resources
are prone to possess different physical capacity, but the entire can enjoy equal
legal status in the international community.
The Treaty of Westphalia had echoed the principles of sovereignty and independence
of states. The jurists belonging to the Naturalist school had introduced the
doctrine of equality of state into international law. Another group of jurists
who were disinclined to this naturalists principle, opposed it on the grounds
of its being contradictory to facts. However, some other writers tried to support
it by making a distinction between the legal and political equality of states.
This doctrine of equality of states implies that states are equal in law despite
other obvious inequalities. In other words, all the states have the same rights
and obligations.
Oppenheim has underlined following four conditions essential for the doctrine
of equality of states in international law:
(a) Every state has a right to vote and to one vote only
(b) The vote of a weaker state has as much weight as the vote of the most powerful state
(c) No state can claim jurisdiction over another
(d) Lastly, the courts of one state do not, as a rule, question the validity of official acts of another state in so far as those acts purport to take effect within6 the latter's jurisdiction
This shows that the rights of one state need legal protection as much as the
rights of any other state irrespective of the fact of physical capacity or geographical
size.
Broadly speaking, all states do not enjoy equal rights in the realm of international
politics, big powers have experienced primacy among states for a long time.
This political primacy got legalized both in the Covenant of League of Nations
and in the UN Charter. Though in the UN General Assembly, the principle of equality
of states is applicable because each member country is required to send equal
number of representatives and each member country casts equal votes. However,
this is not the case with the UN Security Council where only five great powers
are given permanent representation and the principle of equality of voting is
substantially impartial. The political predominance of great powers is not keeping
in consonance with the principles of equality.
According to Alan James, the common possession of sovereignty enables the territorially based members of international society to speak of their sovereign equal ity.7 It is possible to draw "a contrast between them that all states are supposed to be sovereign and the fact that the rights which are at the disposal of some states are inferior to those at the disposal of others." It equally misrepresents the position of the states to say "though lip service continues to be paid to the concept of 'sovereign equality', it now bears less relation then ever to the treaties of the world."9 Though Vattle had aptly stated that a dwarf is as much a man as a giant; a small republic is no less a sovereign state than the most powerful kingdom. Yet the state practice continues to favor the big powers. The cause of small countries was echoed by the Prime Minister of Nigeria at the first Pan-African summit in 1963: "There must be acceptance of equality by all states. No matter whether they are big or small, they are all sovereign and sovereignty is soereignty."11
In the post-Cold War period, the political dominance of great powers continues to rule the roost which in turn has affected the doctrine of sovereign equality of small and weaker states. Some of these states, being raven with ethno-religious dissensions or having geographic contiguity with great or powerful states, have been victims of inequality. Central Asia, Middle East, Africa, and Latin America provide instances of such factual position where the doctrine of sovereign equality of states has been reduced to a mockery.
RIGHT OF EXISTENCE
It is the fundamental, primary, and basic right of every state to have its
national existence. The renowned jurist Fenwick has opined that the right of
a nation to exist is also known in international law as the right of national
security or self-defence or self-preservation.12 When perceived in theoretical
terms it looks very attractive but in real terms, the existence or survival
of a state is dependent on its capabilities to protect itself from state having
conflicting interests or aggressive designs.13 The existence of small and weaker
states has always been at stake. History is replete with many instances, which
demonstrate that powerful and ambitious states have violated the right of smaller
states. Poland fell a prey to its powerful neighbors in 1772–1795, Korea
to Japan in 1910, and Abyssinia to Italy in 1936, etc.
Right of existence is closely akin to right to self-defence. Article 51 of
the UN Charter contemplates the right of resistance to attack or invasion. Despite
the prohibition on the unilateral use of force in Article 2(4) of the UN Charter,
a victim of an armed attack may use force to defend itself and others can join
in force to defend the victim pending action by the Security Council. Undoubtedly,
the right of individual or collective selfdefence continues to apply, it the
Security Council does not act at all. It is also generally accepted that self-defence
against armed attack includes the right to take war to the aggress or in order
effectively to terminate the attack or even to preserve or deter its recurrence.
The states are permitted to organize themselves in advance, as in the case of
North Atlantic Treaty Organization (NATO) in bona-fide self-defence arrangements
for possible action if an armed attack occurs.
In the wake of Suez Crisis it was argued by some that the inherent right of
self-defence incorporated the traditional pre-9 Charter right of self-defence
which was not limited to and did not have to await "armed attack",
that the right of self-defence "if an armed attack occurs" does not
mean" only if an armed attack occurs."14 Some have also argued that
the only limitation on self-defence was that implied in the famous Caroline
dictum that the self-defence was limited to cases in which "the necessity
of self-defence is instant, overwhelming and leaving no choice of means and
no moment of deliberations."15 It further applied that the use of force
had to be reasonable and proportional.
However, Louis Henkin finds these arguments as untenable and fallacious. According
to him, Articles 51 of the UN Charter permits unilateral use of force in very
narrow and clear circumstances, in self-defence if an armed attack occurs.16
Difference of opinion among jurists continues to prevail in this regard.
Justification for an invasion of territory of other states under international
law is contingent upon two conditions. In the first place the necessity of self-defence
by such invasion ought to be of gravest nature, and secondly, the state, which
was invaded, should be reluctant or unable to prevent the impending attack,
if it is by a third power. Grotius expressed opposition to an attack on the
neighbor as it entailed the possibility of being attacked because the neighbor
was amassing arms to defend itself. In Grotius view such an eventuality did
not give a right to attack unless there were other just grounds of war.17 Vattel
has also endorsed this view. However, in practice, the leaders and statesmen
have generally ignored such views of the jurists and went ahead in piling up
sophisticated arms including nuclear weapons. In the post-Second World War period
advent of cold war kept the threat of war imminent because of intense rivalry
between the United States and erstwhile Soviet Union. Massive build up of sophisticated
arms and nuclear arsenals kept the threat of war alive and surrogate states
having affiliation with either side were involved in some of the conflicts that
afflicted the Third World during that period. Even in the post-Cold War period,
the possibility of attack from a powerful neighbor continues to loom large for
the weaker states especially in the Middle East and Central Asia.
The notion of collective defence is also advocated by some to ensure protection
of the states. The idea of collective responsibility for security was incorporated
in the Covenant of the League of Nations. It had also provided for the peaceful
settlement of disputes. The pact of Paris also known as Kellogg Brand Pact concluded
in 1928 had sought to condemn recourse to war as a means to settle international
disputes and laid emphasis on the peaceful settlement. Emphasis was also laid
on renouncing war as a tool of national policy in relation with other states.
However, in no manner did it impair the right of self-defence18 which is inherent
in every sovereign state. The UN Charter provides for the maintenance of peace
and security in the international community.
The UN Security Council is entrusted with the responsibility of taking appropriate
measures to maintain peace and security in the world. The Security Council even
decides upon military measures for which the member countries are called upon
to contribute their forces and join in other measures.
In this way, the UN Charter envisaged the principle of collective security
for the maintenance of peace and security in the world. During the Cold War
period this principle was interpreted by great powers to forge military alliances
like NATO, WTO, ANZUS, CENTO, SEATO etc. thereby seeking refuge under Article
51 of the UN Charter. Measures taken under such military alliances for collective
defence have to be communicated to the Security Council. These measures are
to be ceased when the Security Council takes appropriate measures to restore
and maintain international peace and security. This shows that the right of
self-defence under the Charter is a restricted right as exercisable only until
the Security Council has taken the necessary measures to maintain international
peace and security.
Undoubtedly, the system of collective security as contemplated in the UN Charter
is stronger than what was19 envisaged in the Covenant of the League of Nations.
However, the League failed to instill mutual confidence among its members about
the self-defence measures. However, the United Nations actions in Israel, Indonesia,
Congo, Suez crises and many other conflict prone areas demonstrated that the
UN collective defence system was stronger and effective. However, the collective
defence measures taken against Iraq during the 1990-91 Gulf war and NATO's military
actions against Yugoslavia in 1998-99 have raised doubts about the legitimacy
of collective defence because such arbitrary use is prone to endanger the territorial
integrity of the state against which that action is directed.
INTERVENTION AND SELF-DEFENCE
A state, finding developments in a neighboring state portending threat to its
national security, can declare a war on it and after latter's defeat may impose
conditions on it in the form of terms of peace to prevent recurrence of such
conditions. However, it is an extreme step resorts to which is seldom made.
The aggrieved state can adopt simpler measure in order to get redressal by overturning
the offending government in the neighboring state by intervening in its internal
or external affairs. Thus, on the grounds of self-preservation the aggrieved
state can have the right to intervene in the affairs of another state. Such
situational intervention, in international law is a18
measure of self-defence, provided it is not in contravention of Article 2(4)
of the UN Charter.18 This has introduced a new approach to self-defence.
Oppenheim has opined that intervention is a dictatorial interference by a state
in the affairs of another state for the purpose of maintaining or changing the
actual conditions prevalent therein. However, some jurists have justified it
as a measure of self-defence. The essential ingredient of intervention is the
use of force or a threat to use force.
Intervention has two kinds, internal and external. Internal intervention is
the interference by one state in the disputes between or among the different
groups in another state, to support or protect either the government or its
opponents or rebels. This is the interference in the internal affairs of another
state. External intervention implies interference in the foreign affairs of
another state with a view to creating enemies and hostile relations with other
states. The intervention is legitimized under international law if it is for
self-preservation or for the enforcement of treaty rights or on the grounds
of humanity, or for the protection of property, persons and national honor of
a state. The UN Charter also permits collective intervention provided it does
not affect the domestic jurisdiction of a state.
According to Oppenheim although the law of nations does not permit intervention
yet there are circumstances when intervention can occur or is exercised as a
right. There are also instances where intervention does not occur as of right,
still it is permitted by the law of nations and excused in spite of the violations
of the sovereignty of nations.
Legality of intervention, according to Brierly, is justifiable under three
circumstances: - for self-preservation, for reprisals and for the exercise of
treaty rights.18 Undoubtedly intervention is justifiable for self-preservation
or breach of treaty rights but such circumstances should not be created as a
ploy or pretext for intervention Humanitarian grounds or grounds of protection
of persons and property of or national honor can also justify intervention.
Intervention for self-preservation has created many historical precedents. When
at war with France in 1907, Britain apprehended the seizure of Danish Fleet
by France, Consequently when Britain demanded its custody, Denmark refused it
and Britain seized it in self-defence.
Principles of self-preservation have been explicitly laid down by the famous case of Caroline. According to it a necessity of self-defence should be instant, overwhelming and leaving no choice of means and no time for deliberations. Besides, nothing should be done unreasonable or in excess of the requirement of self-defence.19
RIGHT OF INDEPENDENCE
Every sovereign state has a right of independence. This right of independence
is a corollary of the right of existence. It demonstrates freedom of a state
from outside control in domestic and external affairs. Independence of a state
entails two aspects internal and external. Internal independence implies sovereign
control of a state over persons and property within its territory. In other
words, it is known as domestic jurisdiction of a state. Exercise of the right
empowers a state to frame its national constitution, grant citizenship rights
and regulate the economic, social and political life of the state. In other
words, a state has full control in its internal affairs without any outside
control. Article 2(7) of the UN Charter prohibits the United Nations from interfering
with the domestic jurisdiction of any state, excepting when the Security Council
is required to take action because of threat to breaches of peace under Chapter
Vil of the Charter.
External independence implies the freedom of a state to carry on or determine
its relations with other states without the interference of any other state.
A state can establish diplomatic relations or enter into treaties with other
states. A state is free to have pacts, alliances, commercial and cultural relations
with other states. Both internal and external independence is essential for
a state.
However, the right of independence of a state is subject to .the prevalent limitations or restrictions in international law, which are binding on all the states. The rules and customs of international law, and bilateral and multilateral treaties between and among the states serve as restrictions on the independence of a state. Each state as a responsible member of comity of nations has to abide by rules, standards, norms and human rights framed and adopted by the United Nations and its specialized agencies. These sovereign rights of states have been reiterated within Declaration on Principles of International Law concerning Friendly Relations and Cooperation among states in accordance with the Charter of the United Nations and the Charter of Rights and Duties of States.20
CONCLUSION
In modern times of interdependence—economically and technologically—no
state can either live in isolation or exclusively exercise its national sovereign
rights. Besides, problems like terrorism, drug trafficking, proliferation of
small arms, degradation of environment etc require international cooperation
and interstate interaction for their resolution. Thus, a state, while exercising
its sovereign rights, has to see that similar interests of other state are preserved.
The process of globalization and clamour for attracting a foreign direct investment
demand fluctuations and not rigidly in the capabilities of a state to exercise
its sovereign rights.
Non-State actors like international terrorist groups and multinational corporations
have emerged on the scene as effective pressure groups which have immense potential
of influencing domestic as well as external policies of a state. These and related
developments have necessitated the urgency of safeguarding the national sovereign
rights. This also calls for recasting of measures designed to protect these
rights.
Political predominance of great powers which are represented in the group of
eight or G-8, in Security Council as permanent members Council for Security
and Cooperation in Europe (CSCE) and NATO etc. poses a sort of threat to the
sovereign national rights of small and weaker states. The possibility of this
threat has assumed added dimensions in the post-Cold War period in the aftermath
of the unraveling of former Soviet Union. NATO is expanding eastward and its
role in Bosnia Herzegovina and then in Kosovo has raised apprehensions. The
American role in Iraq also raised skepticism. The mandate of the UN Security
Council was exercised by individual countries.
Thus, the protection of national sovereign rights of a State calls for expansion of the permanent members of the UN Security Council where Veto power should be abolished and all decisions are taken by consensus or at least by two-thirds majority. Only a strong United Nations is the surest guarantee for protection of national sovereign rights of the states.21
NOTES:
1 . For details see, Vattel, The Law of the Nations or The Principles of Natural Law, English translation, Book I (London: 1916)
2. Oppenheim International Law edited by H. Lauterpacht vol. I (London: Long man and Green, 1966), p.261.
3. Cited in P.W. Back and M.B. Travis (ed.) Control of Foreign Relations in Modern Nations (Network: W.W. Norton Company, 1957).
4. Adapted from the UN Charter, see United Nations (UN) Yearbook of the United Nations 1996, Vol. 50. (The Hague: Maitinus Njihoff Publishers, 1996), pp.1449–63.
5. J.G. Starke, Introduction to International Law Seventh edn. (London: Butters worth 1972), p.107.
6. Oppentheim, n.2, pp.263–67.
7. Alan James, Sovereign Statehood: The Basis of International Society (London: Allen and Unwin, 1986), p.270.
8. Stanley Hoffman, Duties Beyond Borders: On the Limits and Possibilities of Ethical International Politics (Syracuse; N.Y. Syracuse University Press, 1981) p.144.
9. Evan Luard Types of International Society (New York: Free Press, 1976), p.234.
10. Vattel Quoted in P. Butler, "Legitimacy in a States-System: Vattel's Law of Nations" in M.Dolelan (ed.) The Reason of States (London: Allen and Unwin, 1978), p.52.
11. Nigerian Prime Minister Sir Abubkar Balewa Quoted in John J. Stella, The International Politics of the Nigerian Civil War, 1967–1971, (Princeton; N.J.: Princeton University Press, 1977). P.16.
12. For details G.F. Fenwick, International Law (London: Appleton; 1971) p.
13. See Articles 1,5, and 7 of the NATO Charter in UN Treaty Series 1949.
14. See McDougal in Proceeding of the American Society of International Law, (1 963), p.1 63.
15. J.B. Moore, Digest of International Law, Vol.2 (1906), p.412.
16. Louis Henkin, How Nations Behave Second edn, (New York: Columbia University Press, 1979) p.141.
17. Max Sorensen, (ed). Manual of Public International Law (New York: Macmillan, 1968), pp. 767-68.
18. For details see J.L. Brierly, The Law of Nations: An Introduction to the Law of Peace edited by, Sir Humphrey Woldock. (London: Oxford University Press, 1963)
19. Cited in Oppenheim n.2, pp. 300-301.
20. UN General Assembly Resolution 2625 (XXV) 24 October 1970.
21. UN General Assembly Resolution adopted on 23 December 1974.