National Sovereignty and External Sovereignty
Introduction
As the title of the essay suggests, here we have to make a distinction between national and external sovereignty. This kind of division is far to be the only one settled in the international context, and there are different expressions of the concept of sovereignty. Even if there is more than one, the concept remains the same and all the categories are different facets of the same idea. Therefore I will structure my essay by analysing the definitions of sovereignty especially throughout the numerous challenges that this concept is facing nowadays.
Sovereignty
The notion of sovereignty comes from the Old French term ‘soverain’ (monarch) and its association with the term ‘reign’. Therefore in its primordial understanding it represents the unshared and overwhelming power of the Monarch within the reign boundaries. The German city of Westphalia (1648) is considered the birthplace of modern state. All the States recognized each other basing their acceptance on the concept of sovereignty. At that time it represented the ‘appearance of a centralized power which exercised its law making and law enforcing authority within a certain territory’ (Morgenthau).
It follows that there are three main characteristics that denote sovereignty and State: i) the claim to territory; ii) the power of the State with regard to its citizens; iii) sovereignty on the international level, known as non-interference in the domestic affairs of other States (sovereign equality). In one sentence, it is ‘monopoly of the legitimate use of physical force within a given territory’ (Weber).
It is consequently clear that sovereignty has a dual implication: one internal and one external. Internal sovereignty resides in the fact that in a specific territory only one State is entitled to have supreme authority and – as a corollary – no other states have the authority to execute any acts within the territory without the consent of the entitled State itself (external sovereignty). It is reasonably evident that the internal and external sovereignty proceed ‘arm-in-arm’, eventually confirming/denying each other (the presence/absence of one has a direct consequence on the other and vice versa). As Dan Sarooshi argued in its ‘Sovereignty, Economic Autonomy, the United States, and the International Trading System: Representations of a Relationship’,
‘The concept of sovereignty, as the ultimate and supreme power of decision, can be both analysed and qualified from the perspective of what can be called its ‘contestable elements: such elements as legal versus political sovereignty, external versus internal sovereignty, indivisible versus divisible sovereignty, governmental versus popular sovereignty.’
In this sense sovereignty is a concept with multiple and ‘dichotomous’ aspects.
In few words, internal sovereignty allows the effective government to legislate – criminal, financial, commercial, political acts – vis-à-vis its citizens. The external sovereignty consents to the States to gain independence and consequently to sign treaties that, in case, limit the sovereignty itself.
Limits & Challenges to Sovereignty
One significant limit to the state sovereignty is constituted by the individualization of International Law. Since the end of World War II there has been – and it is still ongoing – a process of development of international laws focused on the individual rights. The individual gained more and more attention in the international forums and the evolution of international criminal law has set numerous boundaries to the state sovereignty, from Nuremberg Trials to the Statute of the International Criminal Court (ICC), passing through the two ad hoc Tribunals (ICTY and ICTR). Summarizing, since Nuremberg, States officials are criminally persecuted – with some limits – in case of gross violations of international norms. Therefore, Courts, established by the States themselves (ICTY and ICTR set up by the UN Security Council, and so indirectly by the States; ICC created directly by the States once ratified the Statute of Rome) and expression of the external sovereignty, have limited the ‘reserved domain’ of States, and particularly unlawful actions of State functionaries.
Moreover, and in the same way, internal sovereignty has been limited by a stringent respect for Human Rights. The State sovereignty should be construed in view of general principles of International Law, such as prohibition of abuses of rights (Alain Pellet, State sovereignty and the protection of fundamental human rights: an international law perspective). In fact, time-by-time, sources such as the Charter of UN (Preamble, artt. 1.3, 13.1.b, 55) and particular Conventions on specific rights or particular categories, have been translated into customary rules. Especially, fundamental Human Rights (right to life, equality before the law, right to liberty, and so on) are seen as in ‘simple binary opposition’ with the concept of sovereignty: the conservation of sovereignty intrinsically vitiates concepts of Human Rights, while, on the other hand, erosion of sovereignty is a bellwether of progress of Human Rights (Karima Bennoune, ‘Sovereignty vs. Suffering’? Re-examining Sovereignty and Human Rights through the Lens of Iraq).
Nevertheless here is of absolute interest to construct some distinguo that are inherently connected with the violation of the sovereignty. In fact, not so long ago new concepts of armed interventions have emerged in part of the international community. The first notions to be analyzed are the humanitarian intervention and the so-called right/duty of humanitarian intervention. The first one consists in the use of force to protect citizens of the territorial State from inhuman and degrading treatments. The second one has been classified as a duty for the international community in order to put an end to gross violations of Human Rights. Both the theories have to be considered unlawful. The International Court of Justice (ICJ) in the ‘Nicaragua vs. USA’ case declared illegal the humanitarian intervention. The duty/right of humanitarian intervention, moreover, does not have any legal basis in the international order. Therefore, such interventions will be considered lawful only if they can be based on an exception to the prohibition of threat or use of force, that is, self-defence, the authorization by the competent international organization (UN Security Council), and to some extent the traditional circumstances excluding criminal liability (consent, retaliation, distress and so on).
Another manifest violation of state sovereignty consists in the pre-emptive defence. The notion of preventive defence has been enlarged by the so-called ‘Bush Doctrine’. It assesses that in order to face down the terrorist threat and the weapons of mass destruction – against which dissuasion is not useful – States shall intervene also in the case the territorial State harbours or protects terrorist organizations or possesses the above-mentioned weapons and it is ready to use them. Again this notion is to be considered unlawful and eventually it will be the UN SC that will take appropriate measures.
Conclusion
As I tried to explain, the range and the depth of internationally created rules are increasing and are becoming more intrusive towards State sovereignty, too. Globalization, Neo-liberalism and developing legal constructs are relativizing sovereignty. Those postulates considered as natural consequences of sovereignty (independence, equality, and unanimity – Morgenthau) are now becoming weaker because of structural inequalities, e.g. in the UN Charter, in the voting arrangements in the International Monetary Fund, in the possession of nuclear weapons. The independence of States is routinely infringed. Inequality between States has become relatively common in intergovernmental organizations (Benedict Kingsbury, Sovereignty and Inequality). The inequality of sovereignties is clear in economic issues too, with some States obliged to accept policies decided by international organisms (e.g. World Bank or IMF) in which their voices are not taken into consideration at all.
These pressures on the traditional sovereignty have resulted in the weakening of the domestic/international (internal/external) split, questioning whether the State is an agonizing organism in the inter- and supra-national system and, consequently, which kind of alternatives will replace it. The horizon of the proposals is very huge, from a sort of bottom-up democracy in which individuals shape and re-shape forms of collective organizations on the basis of shared collective interests, until the rule of the ‘regions’ replacing States. Even if these indications are often fascinating, it is easy to say that all of them are ‘sector-limited’ (with the risky consequence of an uncontrolled anarchy) and that most of the functions of States are not effortlessly replicated by other institutions.
In one sentence, nowadays ‘there would be no international law without the nation-state and no nation-state would have developed and prevailed but for the idea of sovereignty’ (Bennoune, op. cit.).
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