Legal
meaning of sovereignty
Barrister
Harun ur Rashid
We
always use the term "sovereignty" of a state. What do we actually
mean by that expression? The word "sovereign", according to
its dictionary meaning, is " a person exercising supreme authority".
Accordingly, "sovereignty" of a state means its unrestricted
power within the territory both internally and externally. In other
words the powers of a state are not controlled by any other state or
entity.
Definition
of sovereignty
French Philosopher Jean Bodin (1530-1596) attempted to define sovereignty
by describing it as absolute and perpetual power of a State. International
Law author Brierly in his book "Law of Nations" defined it
as " absolute and illimitable". All these definitions mean
that a state has the full capacity to govern a territory with complete
freedom including its competence to establish relations with other States.
In
the Wimbledon Case (1923), the Permanent Court of International Justice
considered that one of the ingredients of sovereignty was to right and
competence to enter into international agreements with other entities.
Judge Huber in the Island of Palmas Case (1928) noted that "sovereignty
in relation to a portion of the surface of the globe is the legal condition
necessary for the inclusion of such portion of territory of any particular
case".
The
Treaty of Westphalia of 1648 gave approval of nation-states with centralised
national governments and under the Treaty, the defining characteristic
of sovereignty has always been the state's capacity to make authoritative
decisions regarding the people and resources within the territory. This
system began in Europe and it was taken up around the world and it lasted
until the UN was set up in 1945.
Test
of existence of sovereignty
Mere declaring a state within a territory does not confer sovereignty.
It has to be seen whether that state has the unfettered power to exercise
its authority not only in domestic affairs but also in foreign affairs.
For example, a new state "Manchukuo" was declared after Japan
occupied a province in China in 1931. Although Japan immediately recognised
it , international community found that the authority of "Manchukuo"
was controlled by Japan. The League of Nations, the predecessor of the
UN, constituted a Commission to find out facts of the nature of authority
of the new state to determine the existence of sovereignty.
The
Commission led by Lytton came to the following view: " In the government
of "Manchukuo", Japanese officials are prominent and Japanese
advisers are attached to all important departments. Although the Premier
and his Ministers are all Chinese, the heads of the various Boards of
General Affairs, which is an organisation of the new state
vested
with the greatest measure of actual power, are all Japanese". This
implied that the new state "Manchukuo" was virtually under
Japan and could not exercise freely its power. It meant that "Manchukuo"
lacked sovereignty.
At
the birth of sovereign Bangladesh on December 16, 1971, it was widely
reported that there was a proposal from India to appoint Indian advisers
to all departments and ministries in Bangladesh government. The India's
proposal possibly originated from a concern that the administrative
machinery of the new government of Bangladesh might not be able to handle
the gigantic task of rehabilitation and reconstruction of the war-ravaged
country.
However,
Bangladesh government rejected the proposal on the ground that the acceptance
of such proposal might give impression to other states that Bangladesh
was not a sovereign entity but a "satellite of India". Furthermore,
Bangladesh government had an abundant supply of good, efficient and
experienced Bangladeshi officers who had sound academic records both
from local and foreign universities. They were as good as Indian advisers,
if not in some cases better in quality than Indian advisers.
Is
power under sovereignty unlimited?
The simple answer is in the negative because at present sovereignty
is restricted by the rules of international law. Under international
law, it is commonly acknowledged that sovereignty implies dual responsibility:
externally, to respect the sovereignty of other states, and internally,
to respect the dignity of all the people within the state.
The
concept of sovereignty under the Westphalian system has undergone a
change. At the heart of this conceptual approach is a shift in thinking
about the essence of sovereignty, from control to responsibility of
states. Even the strongest supporters of state sovereignty will admit
today that no state holds unlimited power to do what it wants to do
within its territory.
States
exist and interact with other states and international organisations.
They enter into treaties and agreements with other entities and are
bound by them. This means that States themselves surrender some portion
of their sovereignty by agreeing to be bound by the provisions of a
Treaty/Agreement. If they are in beach of the provisions, other states
may not cooperate and may impose boycott or sanctions on the recalcitrant
state.
The
global environment is a complex and multi-faceted one. There are many
global and regional issues that cannot be handled by one state. For
example, issues, such as international disorder, global terrorism, flow
of refugees, fluctuations of global economy, security of food, export
of man-power, elimination of poverty, environmental degradation, prevention
of floods and drought, trafficking of women and children, smuggling
of drugs, prevention and control of deadly diseases need active cooperation
and support of other states and international organisations. The cooperation
and assistance may only come if a state conduct itself within the confines
of international or regional system, governed by rules of law.
Another
matter that merits attention is that fundamental human rights cannot
be denied by states to their own nationals. The 1948 UN Universal Declaration
of Human Rights has become a part of customary international law. It
has been seen that respect for human rights is now a subject of international
concern. No longer a state can legitimately argue that violation of
human rights within its territory is simply a matter of domestic jurisdiction
or an internal matter. This is because individuals are no more "objects"
of international law but are considered as "subjects" of international
law. Individuals can now lodge a complaint against their own states
to the UN Commission of Human Rights.
There
are circumstances when the UN or any regional organisation such as NATO
may intervene if a state grossly violates fundamental human rights or
commits genocide or crimes against humanity. For example the US-led
armed forces attacked former Yugoslavia in 1998 to prevent genocide
and "ethnic cleansing" of Albanians in Kosovo by Serbian authorities
under former President Slobodan Milosevic. Such intervention is known
as humanitarian intervention. It means that the international community
will no longer ready to permit gross abuse of human rights in a state.
It has become now an international responsibility to ensure that genocide
or gross violations of basic human rights do not take place anywhere
in the world.
Conclusion
Sovereignty is now understood as embracing responsibility and not control
and unfettered power. Sovereignty as responsibility has become the minimum
content of good international citizenship. Under emerging international
law, sovereignty is no more the exercise of unlimited power over its
citizens and resources but is limited to state's actions consistent
with the principles and purposes of the UN Charter (Articles 1 and 2
of the Charter).
Barrister
Harun ur Rashid is former Bangladesh Ambassador to the UN, Geneva.
