The Meaning of Sovereignty - Essay Example

?The Meaning of Sovereignty, and Its Extent in Contemporary Nation s Introduction The early nineties saw the collapse of the Soviet Union and the rise of fifteen newly independent states. This event may be seen to parallel the Asian region in the forties and fifties when several former European colonies were granted their independence, and the African region a short time thereafter, for the same reason. The 21st century saw some 200 independent states in the international community, the largest number of free states in history (Tsoundarou, 2002). The key factor for a state to be adjudged independent is its ability to effectively exercise its sovereignty unimpeded by external or internal forces. The concept of sovereignty is generally known by all as the ultimate power for self-determination in a free state. It is oftentimes equated with liberty or freedom. There is general agreement as to its description: sovereignty is absolute, limitless, indefeasible, inalienable, and indivisible (Underhill, 1808); it is qualitative or categorical, not quantitative and therefore not capable of description in percentage terms (Weber, 2011). Ideally, sovereignty resides in the people, although the government exercises the sovereign act in their name. Recently, however, developments in international relations have made it necessary to alter our concept of sovereignty, in order to create workable structures among nations that better address the imperatives of globalization and international cooperation. This essay posits the argument that the largely inwardly-looking concept of sovereignty being pursued by states in the Asia-Pacific region has acted as a constraint on the development of a strong regional union that would better serve their interests in a globalizing world. The predominant Westphalian sovereignty to which the Asia-Pacific nations cling is largely antithetical to the “pooling” of sovereignty that is a requisite to regional unification. In this regard, the Asia-Pacific region is not prepared to meet the imperatives of globalisation. The Meaning of Sovereignty The word “sovereignty” has been used in so many ways that a degree of ambiguity surrounds the determination of its meaning. In fact, there have been some authors who categorically state that sovereignty is impossible to define (Uruena, 2006). To illustrate the complexity of sovereignty as a concept, a taxonomy by Stephen Krasner (1999, in Weber, 2011, p. 3; Cohan, 1995, pp.912-916; and Jackson, 2006, pp. 63-64) identified four different usages: (1) Domestic sovereignty, that pertains to the power structure of state political authority, as well as the degree to which control is effected and imposed by this authority; (2) Interdependent sovereignty, pertaining to the degree by which the political authority is able to effect the entry and egress through its borders; (3) International legal sovereignty, that pertains to the recognition accorded to other states and which other states accord it; and (4) Westphalian sovereignty, that traditional form of sovereignty which excludes all foreign elements from its political processes. The general perception of “sovereignty” is that central power reserved by common consensus of nation states for the political head of that state. This began with the Treaty of Westphalia of 1648, otherwise known as the “Peace Treaty between the Holy Roman Emperor and the King of France and their respective Allies.” Composed of 128 clauses, the document was originally meant to contain the minute details marking the conclusion of the Thirty Years War. It includes the return of landholdings to the different feudal lords, with the promise not to interfere in the regime being implemented in territories other than their own. In effect, the power of the emperor founded on the “claim of holy predominance was passed on to the kings and lords who exercise their own local predominance” (Jackson, 2006, p. 62). This notion of the absolute right of the sovereign was eventually taken to be the “Westphalian” sovereignty. It is characterized by four main attributes (which, it will be noticed, parallel the four types of sovereignty enumerated by Krasner and discussed earlier): (1) The sovereign state enjoys supreme political authority within its territory, and therein exercise a monopoly over the legitimate use of force; (2) It has the ability to regulate movements across its borders; (3) It is able to freely determine its own foreign policy; and (4) It is recognized by other governments to be a free and independent the internal affairs of which may not be interfered with. (Jackson, 2006, p. 63). Westphalian sovereignty is generally regarded by many as an antiquated concept and is no longer viable in the modern context, where globalization has rendered state rule to be tempered by international agreements and treaties. An alternative concept more commonly used is that of legal sovereignty, denoted by the definition by Weber (2011), that sovereignty is the “constitutional independence” of a state, signifying that a state has absolute overall control of its own affairs, and that there is no wider, external constitutional scheme on which it is dependent. Various aspects of the sovereignty debate Knight (2009) sees the continuing debate on sovereignty as falling into two types: the practical debate, and the theoretical (or true sovereignty) debate. In the former, “sovereignty” is sometimes referred to as “legislative supremacy”, and deals with the question as to if a Parliament with sovereign power may allow itself to be bound. In the second question, what is asked is whether or not the head of state tasked to exercise sovereign power may be compelled to abide by its own laws. The practical questions seeks to determine to what extent the sovereign body may exercise its powers. As for the theoretical question, the issue lies in the nature and manner sovereignty may be conceptualized. Weinert (2007) views sovereignty in terms of its apparent fundamental opposition to human rights, the theory being that an expansion of the practice of sovereignty by the state tends to encroach and curtail the exercise of human rights. This is the rationale behind the inclusion of a bill of rights in the constitution of various nations, to indicate the limits of the exercise of sovereignty beyond which it may not transgress upon absolute personal rights. Weiner arrived at eight theses that combined and harmonized human rights and democratic sovereignty, in ways that dissociate sovereignty from its agents (the state leadership who discharge the functions of supreme authority) and align this sovereignty to its ultimate goal, which is the good of citizens. In this manner, sovereignty and human rights are not only aligned, but are also mutually supportive. Uruena (2006) sees sovereignty as grounded in economic foundations, and asserts that sovereignty and the right to property are legal institutions that follow the same logic. Their similarity is grounded in the similarity of their functions, which is to reduce transaction costs thereby improving efficiency. They are but aspects of the law that sets forth solutions to social problems, through legal regulations. In an earlier article, Cohan (1995) noted that sovereignty today is commonly equated to the measure of care governments devote to their citizens. In the present-day context, the Westphalian notion of sovereignty, which espouses that the state has unrestrained control over its territory and the right to impose its powers over its population without external interference is no longer relevant in its original form. Sovereignty has never been absolute, nor can it ever be, because unlimited powers exercised by one state will interfere with the sovereignty of another in this era of globalization and cross-border collaboration. Sovereignty in the Asia-Pacific Region To gain a picture of sovereignty in the Asia Pacific Region, it would be useful to consider the matter from a few practical perspectives. Three have been chosen for this discussion. First is the case of imperatives posed by economic globalization. The second is the matter dealing with non-traditional security, and the third is that of Responsibility to Protect (R2P). These issues shall provide the backdrop for the brief discussion to follow. Economic globalization A highly relevant topic is the challenge posed by the increasingly globalizing economy on the sovereignty of individual nations. The growth of multinationals continues to pose threats to the economic independence of Asian nations, which are exploited either as markets for their products or as suppliers for labour or materials. To a certain degree, Asia-Pacific countries have been compelled to revise their expectations and policies of sovereignty in response to pressures exerted by the increasing global economic order. This is because the impetus to go global has arrived at a time when Asian countries are preoccupied with building state legitimacy and domestic institutions. This may be contrasted with the case in European states whose political legitimacy is firmly established, and which are therefore able to enter into regional institutionalization such as the European Union. In the Asia-Pacific region, the countries are committed to traditional Westphalian sovereignty, and seek regional institutions that enhance the absolute sovereignty of individual states within their territories. This places the region at a disadvantage insofar as concerns its transformation to best take advantage of the globalization thrust. In order to meet the demands of a globalized world, states must work together in the framework of large institutional structures in order to protect their sovereignty. However, in order for these large institutions to function effectively, its members states must be able to cooperate successfully in common endeavors. This is only possible if each state submits itself to some measure of sovereign control, and allows a degree of convergence of national identities with other member states. The dilemma here is that in order for a state to validly and effectively allow for a limitation of the exercise of its sovereignty, the state must first exhibit a strong and legitimate sovereignty in the first place. States whose legitimacy is questioned or threatened could not choose to limit its exercise, because of the danger of losing its flimsy hold on this legitimacy to the internal and external forces that contest it. The Asia-Pacific region, particularly those countries comprising ASEAN, is in just such a predicament. They are mostly in the process of building their sovereign strength. For this reason, ASEAN countries prefer to cling to the Westphalian concept of sovereignty, resulting in the weakness of the ASEAN as a regional institution and its inadequacy to match the stronger international entities such as the European Union. Non-traditional security measures In the post-World War II era and throughout the Cold War period, the Asia-Pacific region relied on bilateralism to provide for regional security. This includes Australia, Japan, South Korea, the Philippines, and Thailand, which all relied primarily on the American “hub and spokes network” to deal with external threats. After the Cold War, countries in the region were confronted with the possibility of US isolationism, and the prospect of new threats, i.e. terrorism, weapons of mass destruction, energy security and maritime security, at which point they turned to multilateral institutionalisation to provide for security provisions. For this reason, the ASEAN Regional Forum was created to stabilize the region as an additional security device (Weber, 2011, p. 5). Despite greater multilateral involvement, the policy implemented in this region was overwhelmingly non-interventionist, and efforts largely supported state-building and the protection of sovereignty. In contrast with Europe where national political governance is well entrenched, the Asia-Pacific countries, several former colonies which gained recent independence, were institutionally weak, with challenges to their political legitimacy emanating within their own borders (Narine, 2002 in Weber, 2011). The principle of non-interference among states in the interest of upholding national sovereignty tended to make the ASEAN weak. This realization prompted leaders of the ASEAN to consider adopting a policy of “constructive intervention” in the 1990s. Malaysian Deputy Prime Minister Anwar Ibrahim defined this term as involving “a closer cooperation between advanced and less advanced ASEAN members to promote regional development but not uninvited intervention in the internal affairs of member states,” (Narine, 2002 in Weber, 2011, p. 8), and that states affected by this intervention would have to first issue an invitation for intervention, which should be economic and political, not military. Subsequently, Thailand’s foreign prime minister, Surin Pitsuwan, proposed the concept of “flexible engagement” which involves public discussion and commentary of the domestic policies of Member States, where such may have regional implications or repercussions in other Member States. To this proposal, all ASEAN states except the Philippines were opposed, for fear of breeding mistrust and renewing tensions between states. Finally, the ASEAN Ministerial Meeting forged an agreement for practice “enhanced interaction” which allows for individual ASEAN members to comment on co-members domestic affairs if such would tend to affect the region, but the ASEAN itself will not intervene (Weber, 2011). Responsibility to Protect The Responsibility to Protect (commonly referred to as ‘R2P’ or ‘RtoP’) is “a global commitment to put an end to genocide, war crimes, ethnic cleansing and crimes against humanity” (APC-R2P, 2009). The agreement was unanimously adopted by world leaders in attendance at the United Nations’ World Summit in 2005, in New York, and was confirmed the following year in Resolution 1674 of the United Nations Security Council. There are three pillars on which R2P is built: Pillar 1 states that it is the “state’s responsibility to protect its own population from war crimes, genocide, ethnic cleansing, and other crimes against humanity,” as well as to prevent their incitement. Pillar 2 affirms that the international community commits itself to help to enable other states to comply with the obligations stated in Pillar 1. Pillar 3 states that the Members States of the UN have a commitment to timely and decisively respond to such threats or incidences, in accordance with the UN Charter, in cases where a state manifestly fails to provide its population such protection. In January 2009, these pillars were further operationalized by a report issued by UN Secretary-General Ban Ki-Moon. The report dealt on the implementation of R2P, and laid emphasis on the equal importance of the three pillars, each being a vital component in order to prevent genocide and mass atrocities, and to extend protection to vulnerable populations (APC-R2P, 2009, p. 3). The following conceptual diagram shows the scope of responsibility to protect vis-a-vis other humanitarian protection measures. R2P is conceived of as a narrow and deep policy area which mainstreams prevention of mass atrocities. The diagram shows that the rule of law reinforces the protection of human rights, which in turn creates a framework for civilian protection during times of war. The bigger circles pertaining to rule of law, human rights enforcement and accountability, and readiness to protect civilians in times of armed conflict, are all contributory frameworks to the fulfilment of R2P commitments (APC-R2P, 2009, p. 4). Conceptual diagram of R2P in relation to other related humanitarian measures Source: APC-R2P, 2009, p. 4 At present, all the Asia-Pacific countries, except North Korea, have endorsed R2P. However, the implementation of R2P remains a contentious issue in this region, for many reasons: (1) Great cultural diversity exists among the Asian nations, creating normative barriers for a common understanding of regional matters; (2) There also exist different political and legal systems among the various countries, making it difficult to arrive at a consensus on many issues; and (3) Lack of political will, political awareness, and concrete, high profile champions of R2P among the nations impedes the progress to its full implementation (Weber, 2011). Therefore, much in the same way as economic and political regional institutions, there is difficulty in arriving at an established and functional R2P organization for the Asia-Pacific region. Westphalian sovereignty rejects the notion of any sort of intervention between countries. R2P, therefore, though theoretically accepted by Asia-Pacific states, will continue to present challenges in its implementation. Conclusion Sovereignty is a concept that has been enshrined in political law as that power of independent states to decide their own course of action without interference from outside powers, the indispensable element of a nation’s freedom from colonial rule. The present era of globalization, however, runs counter to the more absolute and traditional usages of sovereignty. In the countries of the Asia Pacific rim, the continued adherence to the Westphalian type of sovereignty continues to obstruct the establishment of strong regional institutions that draw power from a pooled sovereignty (Montgomery & Glazer, 2002; Sweeney, 2005; Biscop, 2005; Norrlof, 2010). Even in the pooling of sovereignty, there are various qualifications. Biscop (2005) is of the view that the pooling should involve particular functions of sovereignty which do not form the core of nations’ autonomy. Norloff (2010) notes that there are limits to pooling sovereignty. For instance, political unions have greater lasting potential than purely monetary unions. In a contrary opinion, Montgomery & Glazer (2002) state that the pooling of sovereignty more than likely occurs where nation-states have no alternative to surmounting collective action problems facing them unless they collaborate. Finally, on the other end, Rittberger (2001) sees the pooling of sovereignty as a tool that member states can use in order to exert influence from their co-members. He quotes Andrew Moravcsik (1998, p. 67): “Constraints on sovereignty can be imposed in two ways: pooling or delegation of authoritative decision-making. Sovereignty is pooled when governments agree to decide future matters by voting procedures other than unanimity… Sovereignty is delegated when supranational actors are permitted to take autonomous decisions, without an intervening interstate vote or unilateral veto.” To this day, contradictory views still continue to cloud the issues on the effectiveness and desirability of traditional sovereignty. Absolute sovereignty may be a thing of the past, but it has been determined that unless a state is able to secure for itself uncontested legitimate power over its territory as near to absolute as is practicable, it could not relinquish part of this sovereignty to a supranational entity or union, for the purpose of creating a politico-economic structure suitable for globalization. Probably the Asia-Pacific region may take its cue from the newly transitioned republics of Eastern Europe. Recently transformed into sovereign states after the fall of the Soviet Union, several of these states have completed the transition stage and have acceded into the European Union. It appears that the way has been expedited from the establishment of sovereignty to its pooling in the EU soon after. The course for Asia-Pacific countries is thus a delicate one: to expedite its efforts at nation-building while re-orienting its notions of sovereignty towards a more workable, collaborative arrangement. Wordcount = 3,023 words excluding title Bibliography Asia-Pacific Centre for the Responsibility to Protect (APC-R2P) 2009 The Responsibility to Protect: Seminar Materials for Participants. Accessed 15 April 2011 from http://r2pasiapacific.org/documents/R2P%20materials%20for%20seminar%20participants.pdf Bellamy, A J & Davies, S A 2009 “The Responsibility to Protect in the Asia-Pacific Region”, Security Dialogue, December 2009, vol. 40, no. 6, 547-574 Biscop, S (ed.) 2005 E Pluribus Unum? Military Integration in the European Union. Royal Institute for International Relations. Gent: Academia Press Cohan, J A 1995 “Sovereignty in a Postsovereign World.” Florida Journal of International Law. Vol. 18, pp. 907-961 Desmarais, A A; Wittman; & Wiebe, N 2011 “Sovereignty Now!” Alternatives Journal, Mar/Apr2011, Vol. 37 Issue 2, p18-21 Drummond, C 2009 Non-interference and the Responsibility to Protect: Canvassing the Relationship between Sovereignty and Humanity in Southeast Asia. Accessed 15 April 2011 from http://www.polsis.uq.edu.au/dialogue/articledrummond2.pdf International Coalition for the Responsibility to Protect (ICRtoP), Asia/Pacific. July 2009 UN General Assembly Debate on the Responsibility to Protect: What did Member States from the Asia-Pacific region say? Accessed 15 April 2011 from http://www.responsibilitytoprotect.org/GA%20Debate%20MS%20Positions--Asia%20Pacific.pdf Jackson, J H 2006 Sovereignty, the WTO, and Changing Fundamentals of International Law. Cambridge University Press Knight, C J S 2009 “Bi-Polar Sovereignty Restated.”. Cambridge Law Journal, Jul 2009, Vol. 68 Issue 2, p361-387; DOI: 10.1017/S0008197309000361 Magnuson, W 2010 “The Responsibility to Protect and the Decline of Sovereignty: Free Speech Protection Under International Law.” Vanderbilt Journal of Transnational Law, Mar 2010, Vol. 43 Issue 2, p255-312 Melandri, M 2009 “The Relationship between State Sovereignty and the Enforcement of International Criminal Law under the Rome Statute (1998): A Complex Interplay.” International Criminal Law Review, Jul 2009, Vol. 9 Issue 3, p531-545; DOI: 10.1163/157181209X457974 Narine, S 2005 “State Sovereignty and Regional Institutionalism in the Asia Pacific.” The Pacific Review, vol. 17, no. 3, pp. 423-450 Norrlof, C 2010 America’s Global Advantage: US Hegemony and International Cooperation. Cambridge: Cambridge University Press Sweeney, S 2005 Europe, the State, and Globalisation. Pearson Longman Tsoundarou, P 2002 “The Continued Relevance of Sovereignty in a Globalising World: Yugoslavia and its Successor States”, Alternatives: Turkish Journal of International Relations, Vol. 1, Number 3, Fall 2002 Underhill, E F 1868 Proceedings and Debates of the Constitutional Convention of the State of New York, Vol. 1. Albany: Weed, Parsons and Company. Uruena, R 2006 . “Sovereignty as Property: Rediscovering the Economic Foundations of Sovereignty in International Law” Revista Colombiana de Derecho Internacional, Jun-Nov 2006, Issue 8, p195-229 Weber, K 2011 “Playing the Sovereignty Card: Sovereignty as a Semantic Weapon?” EUSA Twelfth Biennial International Conference, Boston, MA, March 3-5, 2011. Weinert, M S 2007 “Bridging the Human Rights—Sovereignty Divide: Theoretical Foundations of a Democratic Sovereignty.” Human Rights Review, Jan 2007, Vol. 8 Issue 2, p5-32 Read More