CHAPTER 3 THE ROLE AND EVOLUTION OF STATE SOVEREIGNTY
THE CONCEPT SOVEREIGNTY
In the late 1990s, in the matter of Prosecutor v Tadic, the International Criminal Tribunal for the former Yugoslavia (ICTRY) remarked that sovereignty was initially perceived as an inviolable and unquestionable characteristic of statehood.1 However, the concept has over the years “suffered progressive erosion” on the basis of the protection and promotion of human rights, amongst other factors.2 Perhaps it is this constant erosion that, inter alia, influenced Ebobrah to assert that the notion of sovereignty “is one of the intriguing features of modern statehood”.3 As will be pointed out below, in international law sovereignty and human rights are often viewed as opposing concepts.4
Before the Second World War, international law prohibited intervention by one state in matters occurring in another state’s territory without the latter’s consent.5 However, since the war, the international community has, through the United Nations Security Council (UN SC), intervened on humanitarian grounds in the domestic affairs of certain states – for example Somalia.6 A recent example of this intervention is the UN SC action against the regime of the late leader Moammar Gadhafi by requiring that all necessary measures be taken in order to prevent the human rights violations perpetrated against protestors in Libya.7 Since the 1990s,8 there have been a number of humanitarian interventions, for example in Kosovo.9 It is on this basis that sovereignty and human rights are seen as fundamentally opposing notions. The obligation to protect human rights is seen as increasingly eroding state sovereignty.10
“Sovereignty” is an elusive term and a controversial topic in international law.11 As one scholar observes:
Few subjects in international law and international relations are as sensitive as the notion of sovereignty. Steinberger refers to it in the Encyclopaedia of Public International Law as “the most glittering and controversial notion in the history, doctrine and practice of international law.” On the other hand, Henkin seeks to banish it from our vocabulary and Lauterpacht calls it a “word which has an emotive quality lacking meaningful specific content,” while Verzijl notes that any discussion on this subject risks degenerating into a Tower of Babel. More affirmatively, Brownlie sees sovereignty as “the basic constitutional doctrine of the law of nations” and Alan James sees it as « the one and only organising principle in respect of the dry surface of the globe, all that surface now … being divided among single entities of a sovereign, or constitutionally independent kind. » As noted by Falk, “There is little neutral ground when it comes to sovereignty”.12
These varying views highlight that the use and meaning of the term sovereignty has generated significant debate amongst scholars. During the 16th century, Bodin defined sovereignty as an “absolute and perpetual power”.13 This definition reflects the positive “side” of sovereignty which entails the provision of political benefit to the citizens, collaboration with other governments, and the ability of a sovereign state to protect its independence.14 Even though the definition above is Bodin’s, he also recognised that there were laws superior to those created by the sovereign such as divine law and the laws of nature or reason.15 In other words, state sovereignty has never in reality been superior to all other law. According to the 2004 World Trade Organisation Report, “sovereignty is one of the most used and also misused concepts of international affairs and international law”.16 It is used repeatedly without much thought as to its true significance in that it covers a variety of hugely complicated aspects – for example the extent of a government’s authority over its citizens.17 This indicates the difficulty associated with capturing the precise meaning of the term “sovereignty”.18 Since Bodin’s definition of sovereignty, several other attempts have been made to define the concept. It is in this regard that the efforts by Walker and others19 are to be welcomed as they contribute to the discussion and understanding of what sovereignty entails. Walker defines sovereignty as:
[T]he discursive form in which a claim concerning the existence and character of a supreme ordering power for a particular polity is expressed, which supreme ordering power purports to establish and sustain the identity and status of the particular polity within the territory the rights of other States, in particular their right to integrity and inviolability in peace and in war, together with the rights which each State may claim for its nationals in foreign territory. Without manifesting its territorial sovereignty in a manner corresponding to circumstances, the State cannot fulfil this duty. Territorial sovereignty cannot limit itself to its negative side, i.e. to excluding the activities of other States; for it serves to divide between nations the space upon which human activities are employed, in order to assure them at all points the minimum of protection of which international law is the guardian.”
Bodley 1999 (31) New York University Journal of International Law and Politics 419. According to Bodley, “[s]overeignty is the most extensive form of jurisdiction under international law. In general terms, it denotes full and unchallengeable power over a piece of territory and all the persons from time to time therein”. See also Winston et al 2004 (43) Columbia Journal of Transnational Law 143-145. Wilson et al have identified at least thirteen different overlapping meanings of sovereignty. According to them, “sovereignty may refer to a personalized monarch (real or ritualized), a symbol for absolute, unlimited control or power, as a symbol of political legitimacy, a symbol of political authority, a symbol of self-determined, national independence, a symbol of governance and constitutional order, a criterion of jurisprudential validation of all law, a symbol of the juridical personality of sovereign equality, a symbol of recognition, a formal unit of legal system, a symbol of powers, immunities, or privileges, a symbol of jurisdictional competence to make and/or apply law, and a symbol of basic governance competencies”.
From this, it can be deduced that, at the very least, sovereignty involves an exercise in and control of absolute power over something in order to maintain a particular status. The exercise of such authority previously excluded other states.21 As will be discussed in due course, this position is no longer supported by the majority of the international community.
There are four ways in which sovereignty has been applied in international law.22 First is “domestic or internal sovereignty”, which refers to the organisation and effectiveness of a political authority within in a state.23 The power or control exercised by the state is unrelated to Westphalian sovereignty. Authority can therefore refer either to internal or to Westphalian sovereignty.24 Second, is ‘interdependence sovereignty’ which denotes that in current times it is generally accepted that forces of globalisation are eroding state sovereignty and creating the need for states to cooperate with each other in order to achieve the common good within an interdependent world.25 The main focus is the control of various aspects, such as the health-care system, and has little to do with the exercise of power. In this regard, the inability to control, inter alia, people and diseases across the globe has been described as a loss of sovereignty. Therefore, interdependence sovereignty does not relate to Westphalian sovereign as a state can be recognised as equal to other states. The inability to control these factors across borders, does not necessarily mean that a state is subject to external control. It is therefore important to distinguish between internal and external sovereignty. The former refers to the ability of the state to exercise its functions and manage its affairs within its territory.26 The latter has traditionally been understood as a government exercising control over its affairs to the exclusion of all foreign states.27 It was characterised by international independence, the right to self-help, and the power to participate in the affairs of the international community.28
Thirdly, sovereignty denotes international legal sovereignty which involves compliance with the requirements for statehood as a political entity in international law as set out in the Montevideo convention on the Rights and Duties of States, 1933.29 In other words, a state must be recognised as sovereign by other states if it is, inter alia, capable of entering into agreements with other states. In this sense, the state is treated as distinct from the individual and international legal sovereignty does not guarantee that domestic authorities will be able to regulate their internal affairs – including movement across their borders.
Fourthly, we find “Westphalian sovereignty” based on the Westphalian model. This means that a state chooses how to conduct its internal affairs to the exclusion of other states.30 Even though those in power may choose how to manage their domestic affairs, they may be limited by external factors. However, the ultimate decision remains theirs. This form of sovereignty would be violated when external actors decide to intervene and influence domestic issues or policies.31 The Westphalian model of sovereignty is, however, no longer supported by modern international law in that “no state is immune from international scrutiny, or even sanction”.32 To this end Depaigne has said that the “sovereign is no longer the king but a nation” that must conform to standards of human rights.33
These four ways in which the term state sovereignty is used, support Reisman’s view that since the time of Aristotle, “the word sovereignty has had a long and varied history during which it has been given different meanings, hues and tones, depending on the context and the objectives of those using the word”.34 For purposes of this thesis, the discussion focuses on how state sovereignty has evolved as a result of regionalism, globalisation, jus cogens norms, head-of-state immunity, humanitarian intervention, and the importance of protecting and promoting.
The Convention was signed at Montevideo on 26 December 1933 and it entered into force on 26 December 1934 (hereafter The Montevideo Convention). The text of the Convention is available at http://www.taiwandocuments.org/montevideo01.htm (Date of use: 29 October 2013). In S v Banda 1989 (4) SA 519 at 529-31 (B) the accused persons were charged with treason. They argued that treason could only be committed against a state and therefore their charges could not stand as Bophuthatswana was not a state. The Bophuthatswana General Division relied on the provisions in the Montevideo Convention and held that Bophuthatswana satisfied the Montevideo criteria and was therefore a state. This judgment resulted in many debates. For example, even though Bophuthatswana was recognised by some of the countries internationally, it did not have defined borders. People were, inter alia, required to produce passports when they were under the impression that they were within the territories of Bophuthatswana only to be told that they were in South African borders. Krasner Sovereignty 14-20.
Depaigne 2007 (10) The Bologna Center Journal of International Affairs 35-49; Williams and Popken 2011 (44) Case Western Reserve Journal of International Law 225. Reisman 1990 (84) The American Journal of International Law 866.
THE EVOLUTION OF STATE SOVEREIGNTY
As mentioned above, there are two forms of state sovereignty, namely, internal and external sovereignty.35 The former relates to the power of the state to discharge its functions as a state within its boundaries and freely to control its domestic affairs; the latter refers to the autonomy of the state to exercise its powers and to protect its territory without outside interference.36 The concept of state sovereignty as originally understood in international law, originated from the Westphalian state.37 This notion has been deconstructed over the years in an attempt to dispel the traditional view that sovereignty is absolute.38 Absolute sovereignty has, therefore, become an outdated notion in contemporary international law in the face of factors such as interdependence and cooperation among states.39
The core elements of state sovereignty can be traced back to the Montevideo Convention of 1933. In terms of the Montevideo Convention, to qualify as a state, the territory must have a defined territory and a functioning government, amongst others.40 The requirement of a defined territory is important in international law as it is that portion of the “earth’s surface” over which the sovereign state may exercise control.41
Westphalian sovereignty entailed the absolute right of states to choose how they wished to conduct their political affairs free from external influence.42 Its main purpose was to “preserve the self-interest of the state”.43 The primacy of state sovereignty was therefore undisputed.44 States could only limit their sovereignty through accepting responsibilities flowing from treaty law or compulsory obligations that arose from customary international law.45 The notion of state sovereignty as an absolute, unrestricted power of a state originated with the Treaty of Westphalia in 1648 (Westphalia).46 Westphalia marked an end of a Thirty Years War in Europe.47 It also introduced the principle of sovereignty which permitted states to have control over their territories without external influence.48 Article 2(7) of the Charter of the United Nations also recognises the principle of non-intervention and provides that Nothing contained in the present Charter 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; but this principle shall not prejudice the application of enforcement measures under Chapter Vll.49
The said principle of non-intervention was reaffirmed in the Corfu Channel case, where the International Court of Justice (ICJ), the principal judicial organ of the United Nations, stated that “… [b]etween independent States, respect for territorial sovereignty is an essential foundation of international relations…”.50 This principle was also upheld in Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) 51 where the United States of America (USA), inter alia, conducted military activities in and against Nicaragua with the aim of overthrowing the Nicaraguan government. Nicaragua approached the ICJ alleging, inter alia, that the USA was funding militants and that some of the shots fired by USA military forces were in violation of international law. The issues for determination by the ICJ included whether the USA had breached its customary international law obligation not to intervene in the domestic affairs of another state when it aided the military and paramilitary activities against Nicaragua. The ICJ first remarked that …[h]owever the regime in Nicaragua be defined, adherence by a State to any particular doctrine does not constitute a violation of customary international law; to hold otherwise would make nonsense of the fundamental principle of State sovereignty, on which the whole of international law rests, and the freedom of choice of the political, social, economic and cultural system of a State. Consequently, Nicaragua’s domestic policy options, even assuming that they correspond to the description given of them by the Congress finding [dictatorship], cannot justify on the legal plane the various actions of the Respondent complained of. The Court cannot contemplate the creation of a new rule opening up a right of intervention by one State against another on the ground that the latter has opted for some particular ideology or political system.52
It consequently ruled that the USA had acted in breach of its obligation under customary international law not to intervene in the affairs of Nicaragua.53 According to Brownlie, the “principal corollaries of the sovereign state and equality of states [include] a duty of non-intervention in the area of exclusive jurisdiction of other states”.54 The principle of non-intervention is provided for in the Charter of the United Nations and prohibits member states from interfering in the domestic affairs of another member state.55 However, this does not mean that intervention may never take place in the territory of another state as the UN SC may recommend (or even take) measures56 intended to address, inter alia, threats to international peace or breaches of the peace, and this constitutes an exception to the principle of non-intervention.
TABLE OF CONTENTS
CHAPTER 1: INTRODUCTION
1 Emergence of sub-regional communities and their mandate over human rights
2 Road leading to the establishment of the Southern African Development Community
3 Southern African Development Community
4 Southern African Development Community Institutions
5 Problem statement
6 Research question
7 Scope of the study
9 Summary of chapters
CHAPTER 2: POWERS OF INTERNATIONAL AND SUB-REGIONAL ORGANISATIONS AND THEIR JUDICIAL ORGANS
1 The concept of jurisdiction
2 Jurisdiction and powers of international organisations
3 Jurisdiction over human rights in Africa’s sub-regional courts
4 Lessons from other regional, sub-regional and international tribunals and implied powers
CHAPTER 3: THE ROLE AND EVOLUTION OF STATE SOVEREIGNTY
1 The concept sovereignty
2 The evolution of state sovereignty
CHAPTER 4: THE RELATIONSHIP BETWEEN INTERNATIONAL, REGIONAL (SADC) AND NATIONAL LAW
1 International law, SADC Community law, and national law
2 The relationship between international law and SADC Community law .
3 Traditional theories on reception of international law in national law
4 Should decisions of the (suspended) SADC Tribunal be treated as foreign judgments or international judgments?
CHAPTER 5: COMPLIANCE WITH AND ENFORCEMENT OF JUDGMENTS OF THE SADC TRIBUNAL
2 Zimbabwe’s challenge to the legitimacy of the SADC Tribunal
3 SADC member states’ consent to be bound by a treaty
4 Treaty provisions empowering the Summit to suspend the SADC Tribunal
5 Discussion of the judgments of the SADC Tribunal
6 Evaluation of the cases
7 Enforcement of the SADC Tribunal’s judgments in international law
8 Status of decisions delivered by the suspended SADC Tribunal and pending Cases
9 Lessons from the European Court of Justice and ECOWAS CCJ
CHAPTER 6: FINDINGS AND RECOMMENDATIONS
2 Jurisdiction of the SADC Tribunal
3 State sovereignty
4 Relationship between international law, regional law (SADC Community law) and national law
5 Compliance with and enforcement of (sub)-regional judgments
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