Legal Thought Module - Essay Example

? Legal Thought Module How Sovereignty is founded or projected is a Crucial Question for Any Legal Theory Introduction The meaning and concept of sovereignty is open to change with space and time because of varied reasons. In as much as all scholars and students of international law & relations agree about this conceptual change, they have failed to agree on its possible causes. Some argue that the changes are subject to the corresponding transformations in the global institutions while some assert that the changes are as a result of the Westphalian order. Wendy Brown argues that sovereignty is slowly being transferred from statehood to global capital. In the book, the Walled States, Waning Sovereignty, he argues that the contemporary revival of wall building is incapable of stopping smuggling and immigration. Furthermore, they don’t even stop crimes but instead disperse their effects. The same issue has been addressed by Bonnie Honig in the book Democracy and the Foreigner: The Foreigner as Founder. She addresses the issue of sovereignty and how democracy should deal with foreigners. This paper discuses sovereignty in the current global setting where walls and democracies that tend to discriminate against foreigners have been passed by time. Wall Building and Globalization When the Berlin Wall was brought down, many people thought that the world was opening up and no more walls were going to be constructed. However, this has not been the case because more walls have been constructed only that this hasn’t stopped the world from opening up because globalization is just unstoppable. The resurgence of the construction of physical walls like the US-Mexico border fence, similar borders in the European Union, the Israeli West Bank barrier among many others continue to be witnessed1. The construction of these walls often represent the increased desire for enclosure as if nations could safely wrap themselves on their own to protect themselves from their neighbours. The problem however, as argued by Wendy, is that these walls never achieve the objectives for which they were constructed. They cannot do anything meaningful in terms of securing the borders as they don’t have the ability to repel the enemies and are almost useless when it comes to external aggression like in the case of biological weapons and suicide bombers. The problem however is that despite such inefficiencies, the construction of walls is still being witnessed and is increasingly becoming popular. These walls sit on the national boundaries but the things they are meant to cater for are decentralized, transnational and dispersed2. This explains why they have proved to be very inefficient when it comes to achieving their objectives. The ideology of globalization which is dominant in the world today advocates for a world without boundaries in order to give room for humanitarian interventionism, free markets, universal democracy and global governance. The continued construction of walls is however headed in the opposition direction but still hasn’t managed to deter the prosperity of globalization. This construction is only a simple of anachronism because the walls are unfashionable given the urge for cooperation and interdependence among states. In the current state of affairs where globalization reigns through disregarding the state boundaries, one wonders what is happening to sovereignty of nation states. State sovereignty is still existent as globalization hasn’t done away with it. In fact globalization cannot exist without the support of the states because it is reliant on states when it comes to matters like security and law enforcement. Bonnie Honig has also addressed this issue as she wonders whether democracy would still be existent in a world without countries, nations or citizenship3. This is a problem that is associated with globalization because solutions on how to deal with the problem of foreignness must be found for the ideology of globalization to be fruitful and beneficial to all. This is particularly important given that globalization has been embraced by almost all nation states because of its positive effects. Political theorists have been deliberating on the extent to which the ideology of social unity should be embraced in order to uphold social democracy. Some scholars take foreignness as a threat of corruption that must be contained or totally kept out for the sake of stability and identity of a regime. However, this is not the approach to take because it has already proven to be ineffective; instead a new social order should be adopted in order to achieve the desired objectives. Sovereignty, Globalization and Transnational Social Movements The ideology of globalization has been interpreted by scholars in terms of culture, technology and geography. The external state sovereignty buttresses the international state system of Westphalia and Versailles. The effects of globalization are being felt all over the world by both the big and small nation states4. The nation states now coexist with a larger number of non sovereign and independent actors that are very powerful. The independent actors range from non governmental organizations to corporations, from drug cartels to terrorist groups, from private equity funds to regional and global institutions. The above non sovereign and independent actors have influence on the operations of the nation states either positively or negatively. The implication here is that the near monopoly power that the sovereign states used to enjoy has been significantly reduced. This now explains the reason why new mechanisms need to be put in place to cater for regional and global governance. This doesn’t mean that corporations and institutions like Microsoft and Amnesty International be given seats in the United Nations General Assembly. Instead, it means that the representatives of such organizations should be included in both regional and global deliberations because they are very important players in the global economy5. In so doing, they will help the nation states in dealing with the challenges of globalization. As a matter of fact such an approach is in a better position to solve these problems than say erecting walls or meditating on how to deal with the foreigners. The states will therefore have to cede some sovereignty to these institutions if the international world order is to properly function and yield maximum results. This is already going on in the business sphere as governments have agreed to accept and implement the rulings of the World Trade Organization. This is all based on the benefits that they derive from the international trading order and for this to happen; they have to adjust some of the practices in order to facilitate international trade. There are different examples of situations where governments have ceded some of their sovereign powers for the new world order6. This has been necessitated by the need to adhere to certain conditions in order to make the world a better place. For instance in order to address the challenges and the threat of global climate change, some governments are ready to give up some elements of their sovereignty in order to deal with the issue of global climate change. The signatories of the Kyoto Protocol for instance have agreed to reduce on the percentage of emissions. The pending issue that the signatory nation states are addressing at the moment is how to increase the membership by enticing governments like that of China, United States and India and for this to be achieved; these countries have to cede some sovereignty.7 This is a very huge step forward because all the countries have to realize the importance of taking care of our planet through the reduction of emissions8. However because of the failure to reach a common ground given that some countries have failed to join the protocol and abide by the rules, some member states have decided to pull out as witnessed in the Canadian withdrawal from the pact. The above argument implies that the sovereignty of states will still be existent but there is need to redefine it in order to reconcile it with globalization. Failure to do this will only have a chaotic effect given the nature of the need for countries to join hands and work towards a common good. Globalization entails the increment in volume and velocity flow both within and across the borders. Ideas, people, goods, greenhouse gases, viruses, drugs, weapons, emails, dollars and good deals often traverse borders moving either way. They often challenge the fundamental principles of sovereignty like the ability to control what crosses the border in either direction9. This explains why some nation states have taken to building walls and formulating strict immigration laws in order to check on these movements. Sovereign states often measure the intensity of their vulnerability through the forces that are beyond their control and there are many at that. With globalization, sovereignty is weakening and will continue to do so in order to have a safe haven that sovereignty can no longer guarantee in the current globalised world. It is no longer possible to build walls to keep away ideologies and people because this has already proven to be ineffective. Even keeping away foreigners and denying them some democratic rights will not yield the desired results10. The way forward therefore is to adapt the new world order and come up with new ways of dealing with the current challenges. There is need to redefine the concept of sovereignty because nation states can no longer do things just for the sake of it even if they are harmful to the well being of the rest of us. For instance when America realized that the Afghan Taliban government was supporting the Al-Qaeda, it reacted by removing it from power11. The same happened to Eretria when the UN Security Council realized that they were supplying Alshabab with weapons. Their reaction was to pass sanctions on it because there is no way it was going to allow Eretria to continue supporting terrorist groups. The above incidences imply that sovereignty no longer guarantees absolute protection because no country is an independent entity as we are all part of the global society. For instance the world cannot allow any government to use nuclear weapons just because it is sovereign and as such its internal affairs should not be interfered with. This means that sovereignty will not provide security to that particular state because the other countries will intervene and stop it from going ahead with such unethical undertakings. In this era, sovereignty is only functional if it does not cause harm to the other nation states and brings satisfaction to all the other parties. Anything contrary to this will only lead to external aggression in order to restore order. There are also other factors that may lead to the reduction or even total elimination of sovereignty, like for instance in case of genocide or if a state can no longer provide for its citizens12. This was witnessed when The North Atlantic Treaty Organization (NATO) decided to intervene in Serbia in order to stop ethnic cleansing and genocide. In the cases where sovereignty was left to reign like in Rwanda and Darfur, it proved to be very costly as witnessed in the mass killings13. The above incidences clearly imply that the notion of sovereignty must be conditional, and even contractual but not absolute. By this, if a state fails to live up to its side of the bargain by doing unlawful things then, it automatically forfeits the normal advantages of sovereignty and subjects itself to attack, removal or even occupation if need be. Conclusion There is need to redefine sovereignty in this era of globalization in order to strike a balance between sovereign states and an international world order. The basic tenets of sovereignty like the provision of a mechanism to constraint any possibilities of violence between states need to be retained. It should be given an international perception in order to align it with the current wave of globalization. Therefore, democracy will still be existent in a world without countries, nations or citizenship as we will be more united as the human race than never before. References Andrew Arato & Jean Cohen. Banishing the Sovereign? Internal and External Sovereignty in Arendt. (Constellations 16 (2), 2009) Arash Abizadeh . Closed Borders, Human Rights, and Democratic Legitimation. In David Hollenbach (ed.), Driven From Home: Human Rights and the New Realities of Forced Migration. (Georgetown University Press, 2010) Baruch A. Brody. Intellectual Property, State Sovereignty, and Biotechnology. (Kennedy Institute of Ethics Journal 20 (1), 2010) Bonnie Honig. Democracy and the Foreigner. (Princeton University Press, 2001). Charles A. Barbour & George Pavlich .After Sovereignty: On the Question of Political Beginnings. (Routledge, 2010) Endre Begby . Liberty, Statehood and Sovereignty: Walzer on Mill on Non-Intervention. (Journal of Military Ethics 2 (1), 2003). Fowler, M. R. and J. M. Bunck. 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