State Sovereignty in Modern Context

In an increasingly interdependent world, one struggling to maintain equilibrium in the wake of globalization, the concept of state sovereignty is ever-evolving. This paper seeks to analyze the nature of state sovereignty: its origins, varying manifestations, to what extent it has changed, and its applications and exceptions in modern context.

Although the concept of the sovereign, as a supreme lawmaking authority, existed as early as the classical Greek period, its more contemporary manifestations can be traced back to 18^th century France in the writings of political philosopher Jean-Jacques Rousseau. In 1762, at the height of the Enlightenment, Rousseau published The Social Contract in which he outlined "how a government could exist in such a way that it protects the equality and character of its citizens."[1] In this he gave birth to the concept of "popular sovereignty" whereby the sovereign exercises his power for the common good of his people. Rousseau's Social Contract broke with the traditional autocratic model of sovereignty, however, in that it recognized the people, rather than the monarch, as the true sovereign power within the state.[2] It is from Rousseau that we derive our modern notions of state sovereignty and popular rule.

In modern context - excepting non-Western or non-democratic regions of the world wherein archaic, typically autocratic models of governance are still exercised (i.e. communist states, tribal societies, theocracies, et al) - state sovereignty has largely manifested itself in one of two ways: either in the form of democratic republics or as constitutional monarchies.

In the case of democratic republics, sovereign power is exercised by elected representatives who legislate on behalf of the people, although not necessarily in accordance with their wishes. Herein there is a separation of powers, such that the abuses often associated with the classical, autocratic model of sovereign rule can be avoided. An elected legislative body prescribes the law, but cannot enforce it; an elected executive enacts the law, but cannot write it; and an independent judiciary determines the legality of the law, but cannot rewrite it.[3] The best modern examples of democratic republics are the United States, Germany, and the Russian Federation.

Constitutional monarchies, meanwhile, differ slightly from democratic republics. The executive branch in a constitutional monarchy is usually headed by a hereditary monarch rather than an elected official. The power to make and pass laws remains largely the same, however, resting in the hands of an elected Parliament. An independent judiciary is also part of this model. [4] Constitutional monarchies are most readily observed in the United Kingdom, Canada, and Australia.

In both of these instances, each state's sovereign authority exists primarily within the confines of its territory (i.e. national defense, internal security matters, etc.), although not exclusively. There are instances extending beyond territoriality whereupon a state may choose to exert sovereign authority. These are ostensibly: cases of nationality, whereby a state reserves the right to prosecute its own foreign nationals; cases of protectionism, whereby a state may prosecute any individual, foreign or otherwise, who has threatened its security or integrity (e.g. espionage, counterfeiting, et al.); and cases of universality, whereby a state is empowered to prosecute individuals (or entities) whose crimes are so heinous that they are subject to international jurisdiction (e.g. slavery, piracy, genocide, et al.)[5] It is here, in these three instances of extra-territorial jurisdiction, that state sovereignty often collides with international law.

International law acknowledges "sovereignty" as the legitimate exercise of power by a state; however, this is often taken out of context.

When international lawyers say that a state is sovereign, all that they really mean is that it is independent, that is, that it in not a dependency of some other state. They do not mean that it is in any way above the law... Everyone knows that states are powerful, but the emphasis on sovereignty exaggerates their power and encourages them to abuse it.[6]

Indeed it is this over-exaggeration of state sovereign authority that leads to so many legal quandaries in international law enforcement today. Intra-territorial sovereignty is essentially a given; it is the right of every independent, self-governing state. Extra-territorial sovereignty has its limits though.

International law recognizes a distinction between du jure and de facto territorial sovereignty rights. Accordingly, a nation cannot claim sovereign authority in a territory that it does not govern in practice; simply laying claim to a territory without maintaining some manner of rule or government presence does not grant a state automatic sovereign authority. This was the basis for the legal decision in the case of US v. Netherlands over the Island of Palmas (or Miangas). The United States' du jure territorial claim to this island was nullified in a 1928 PCA decision on the grounds that it had not made any effort to claim or govern the island since its annexation in the Spanish-American War. The Netherlands, meanwhile, had exercised de facto legal authority on the island since 1677 and was thus recognized as having sovereign authority there.[7]

Where sovereign authority based on nationality is concerned - the right to prosecute one's own foreign nationals - the vast majority of international legal precedents have accorded states this right. A notable exception to this, however, is in instances of passive personality jurisdiction, whereby "the State has jurisdiction to judge crimes committed against its own nationals."[8] Passive personality tends to be a gray area in international law and, more often than not, a point of international contention. A prime example of this would be the case of US vs. Fawaz Yunis, where a Lebanese-born Amal militiaman directed terrorist acts against US Nationals onboard two international flights out of Jordan and Greece in 1985; the latter case resulted in the death of a US Navy diver, Robert Stetham. The FBI arrested Yunis in international waters off the coast of Cyprus, irrespective of Lebanese protestations, on the grounds that it held passive personality jurisdiction in the matter since Yunis' crimes were committed against American citizens.[9]

Sovereign authority on the grounds of protectionism, meanwhile, tends to be fairly well understood in international law, if not always palatable. The right to prosecute foreign spies has been common practice since the Cold War - especially where China and Russia are concerned - as has the right to prosecute those taking part in money laundering, bank fraud, and counterfeiting schemes. The United States has been well publicized in recent years for prosecuting West African (i.e. Nigerian) and Southeast Asian (i.e. North Korean) individuals who have committed these latter crimes.[10]

The exercise of universality - in cases where jurisdiction overlaps on an international level (i.e. human rights crimes) - is perhaps the single most problematic application of state sovereign authority in international law, and the most often ignored. This legal quandary does not arise from any uncertainty in the law, but rather from the characterization of the crime by the state. Universal sovereign authority is only exercised where a sufficiently heinous violation of human rights has been observed; however, that violation must first be labeled as such by the international community, otherwise states are not inclined to exercise this sovereign authority. A contemporary example of this is the Rwandan genocide of 1994 whereupon a 100-day-long massacre of ethnic Tutsis by rival Hutus ensued following the assassination of then President Juvenal Habyalimana, resulting in the deaths of well over 800,000; however, in what was clearly an attempt at ethnic cleansing in Rwanda, rather than intercede, UN forces chose to withdraw from the area until the killing was over. It was only after the fact that the UN labeled the events in Rwanda as genocide; its member nations were thus able to avoid the exercise (and obligation) of their universal sovereign authority.[11] In summation, the role of state sovereignty in international law remains relevant, if not problematic (as evidenced above.) Modern states still enjoy a great deal of authoritative latitude on the international scene - this despite sovereignty's evolution from the autocratic to the all-inclusive. Nevertheless, state sovereign authority is frequently overestimated, and must occasionally be reined in by international law.

[1] James J. Delaney. "Jean-Jacques Rousseau (1712-1778)," The Internet Encyclopedia of Philosophy at the University of Tennessee at Martin,http://www.iep.utm.edu/r/rousseau.htm (accessed 25 March 2007).

[2] Ibid

[3] "Democratic Government." The United States Department of State, http://usinfo.state.gov/products/pubs/whatsdem/whatdm7.htm (accessed 25 March 2007).

[4] "What is Constitutional Monarchy?." The Monarchy Today, http://www.royal.gov.uk/output/Page4682.asp (accessed 25 March 2007).

[5] Peter Malanczuk, Akehurst's Modern Introduction to International Law. 7^th Edition. (London, New York: Routledge, 1997), 110-113.

[6] Ibid, 16-18.

[7] "The Island of Palmas Case (or Miangas): Award." The Hague Justice Portal, http://www.thehaguelegalcapital.nl/eCache/DEF/5/184.TD1GUg.html (accessed 25 March 2007).

[8] "Universal Jurisdiction." TRIAL: Track Impunity Always, http://www.trial-ch.org/en/international/universal-jurisdiction.html (accessed 25 March 2007).

[9] "United States of America v. Fawaz Yunis." International Criminal Law at the Chicago-Kent College of Law, Illinois Institute of Technology, http://www.kentlaw.edu/classes/bbrown/IntlCrimLawFall2006/CourseDocs/USvFawaz-Yunis.pdf (accessed 25 March 2007.)

[10] "Common Fraud Schemes." Federal Bureau of Investigation, http://www.fbi.gov/majcases/fraud/fraudschemes.htm (accessed 25 March 2007).

[11] "Genocide in Rwanda." United Human Rights Council, http://www.unitedhumanrights.org/Genocide/genocide_in_rwanda.htm, (accessed 25 March 2007).