States as Sovereign entities

State sovereignty has, for the past several hundred years, been a defining principle of interstate relations and a foundation of world order. The concept lies at the heart of both customary international law and the United Nations (UN) Charter. It also re-mains an essential component of the maintenance of international peace and security, as well as the defense of weak states against the strong. Simultaneously, the concept has never been as inviolable, in law or in practice, as a formal legal definition may imply.¹⁶⁷

Empirically, sovereignty has routinely been violated by powerful states. In today’s globalized world, it is generally recognized that cultural, environmental, and economic influences do not respect borders. The concept of state sovereignty is well entrenched in legal and political discourse. At the same time, territorial boundaries have come under stress and have significantly diminished as a result of contemporary international relations (IR). Not only have technology and communication caused borders to be-come permeable, but the political dimensions of internal disorder and suffering have also often resulted in greater international disorder. Consequently, perspectives on the range and role of state sovereignty have, particularly over the past decade, quickly and substantially evolved.¹⁶⁸ This chapter introduces a short review on the concept of the state and the origins of sovereignty. It will discuss the widely acknowledged limits and challenges of state sovereignty, particularly in the context of the human right regimes.

The logical introduction to the contemporary challenges of state sovereignty includes defining the concept of a state.¹⁶⁹ The basic criteria of statehood are to be found in Article 1 of the Montevideo Convention on the Rights and Duties of States 1933¹⁷⁰, which require that: “The State, as a person of international law should possess the following qualifications: a) a permanent population; b) a defined territory; c) govern-ment; and d) capacity to enter into relations with other states.¹⁷¹” This is generally accepted as the definition of statehood and has, despite existing criticism, evolved into a rule of customary international law (IL). Population and territorial requirements

167 According to former Secretary-General, “ The time of absolute sovereignty … has passed; its theory was never matched by reality.” Boutros Boutros-Ghali, An Agenda for peace (New York: United Nations, 1992), para.17.

168 State Sovereignty: International Development Research Centre at http://www.idrc.ca/en/ev-28492-201-1-DO_TOPIC.

html. Accessed 22.3.2008.

169 See more on States and the legal personality in international law at Warbick Colin, States and recognition in inter-national law, in Malcolm D. Evans (ed.) Interinter-national law, Oxford University Press, 2003, 206-231.

170 The Convention itself has been ratified by only a very small number of South American states.

171 Warbick, Colin, States and Recognition in International Law (The legal criteria of statehood) in Malcolm D. Evans ( ed.) International Law. Oxford University Press, 2003, 221-231.

are relatively uncontroversial. Essentially, IL does not impose a lower limit on the size of a population and recognizes that a population may be nomadic. Accordingly, the question of territory does not require that a state have undisputed boundaries, but necessitates a ‘sufficient consistency’ instead.¹⁷² There is also no specification for a particular type of government, such as a democracy, in order for it to constitute a state. According to Barker, of the criteria outlined above, the fourth - the capacity to enter into international relations with other states - is the most controversial. In this regard, there has been a debate as to whether this criterion requires that an entity be recognized by other states in order for it to exist. According to a majority of interna-tional lawyers, the recognition is merely declarative of the status of an entity as a state under IL. Recognition is, therefore, essentially a political act.¹⁷³

The history of IR and the present foundation of IL, with regard to sovereignty, have often been traced back to the 1648 Peace of Westphalia¹⁷⁴, where the modern state system was developed. Prior to this, the European medieval organization of political authority was based on a vaguely hierarchical religious order. Westphalia instituted the legal concept of sovereignty, which essentially meant that rulers, or legitimate sovereigns, had no internal equals within a defined territory and no external superiors, as the ultimate authority, within the territory’s sovereign borders.¹⁷⁵ Despite its varied definitions over time, the Stanford Encyclopedia of Philosophy defines sovereignty as the ‘supreme authority within a territory’.¹⁷⁶

State sovereignty denotes the competence, independence, and legal equality of states.

The concept is normally used to encompass all matters on which a state is permitted, by IL, to decide and act without the intrusion of other sovereign states. These matters include choices regarding political, economic, social and cultural systems, as well as the formulation of foreign policy. However, the scope of such state choices is limited and depends on developments in IL (including agreements made voluntarily) and IR.¹⁷⁷

An important component of sovereignty has been an adequate display of state authority over its respective territory and the exclusion of such action to other states.

172 See more on Western Sahara Case (1975) ICJ Rep. 12; Per German-polish Mixed Arbitral Tribunal in Deutsche Continental Gas-Gesellschaft v Polish State 5 A.D. 11 at P. 15 (1929); Barker 2000, 38-39.

173 Barker 2000, pp. 39-40. This does not mean, however, that recognition of an entity as a state is required before a state can enter into bilateral relations with that entity. On the other hand, an express act of recognition is not required and can be implied from the actual creation of bilateral relations.

174 The Peace of Westphalia was a series of peace treaties signed between May and October of 1648 in Osnabruck and Munster. These treaties ended the Thirty years ‘ War (1618-1648) in the Holy Roman Empire, and the Eighty Years War (1568-1648) between Spain and the Dutch Republic. See also Stephen C Neff, A short history of international law in Malcolm D. Evans (ed.), International Law, Oxford University Press, 2003, 37-38.

175 Barker J. Craig, International law and international relations , York, 2000, 37.

176 Stanford Encyclopedia of Philosophy at http://plato.stanford.edu/entries/sovereignty/ . Accessed 8.6.2010.

177 State Sovereignty: International Development Research Centre at http://www.idrc.ca/en/ev-28492-201-1-DO_TOPIC.

html. Accessed 22.3.2008.

The post-1945 system of international order, enshrined in the UN Charter, inherited this basic model. Following decolonization, a restrictive and Eurocentric (that is, West-ern) order became global. There were no longer “insiders” and “outsiders” as virtually every individual inhabiting the globe lived within a sovereign state. Concurrently, the multiplication of the number of states did not diminish the controversial character of sovereignty.¹⁷⁸ However, it must be noted that dozens of colonial overseas territories still remain today. These are either recognised as non-self-governing territories by the UN or exist in disguise as a result of a one-sided integration/incorporation with a colonial power.

In accordance with article 2 (1) of the UN Charter, the organization of the world is based on the principle of the sovereign equality of all member states. While states are equal in relation to one another, their status of legal equality, as a mark of sov-ereignty, also serves as a basis for establishing intergovernmental organizations and endowing them with the capacity to act between and within states, to the extent that the framework of the organization permits it. As a hallmark of statehood, territorial sovereignty underlies the system of international order in relations among states. An act of aggression is unlawful, not only because it undermines the international order, but also because states have exercised their sovereignty to outlaw war. Additionally, the failure or weakening of state capacity, which produces a political vacuum within states, leads to human tragedies, as well as international and regional insecurity. Repressive, aggressive, or collapsed states may result in threats to international peace and security.¹⁷⁹

The principle of non-interference in affairs within states’ domestic jurisdiction is the anchor to state sovereignty within the system of IR. Indigenous global politics regard the Westphalian system of sovereign independent nation states as a construct that privileges Euro-centric societies over all others in the international sphere. The transnational movement of indigenous rights seeks a reconfiguration of this norm toward a more pluralistic conception. According to Lightfood, securing indigenous rights to land and self-determination through a less state-centric and multi-faceted view of sovereignty, thus, offers a new and particular challenge to the hegemonic, and increasingly pressured, Westphalian international system.¹⁸⁰

To conclude, in order to be considered as a subject of IL, an entity must be capable of possessing rights and duties under IL and have the procedural capacity to enforce those rights and duties. Traditionally, only states fulfilled the necessary requirements.

As will be examined later, IL has developed in manner that allows it to recognize further categories of subjects. However, it cannot be denied that states remain the

178 ibid.

179 ibid.

180 Lightfood Sheryl, Emerging International Indigenous Rights Norms and ‘Over-Compliance’ in New Zealand and Canada.”  Political Science, Vol. 62, No. 1, June 2010, pp. 84-104.

primary subjects of IL. According to Barker, there are four factors that point toward the primacy of states in IL. First, IL is primarily a system of law between states. It is made by states and is concerned with regulating the interactions of states. Secondly, the International Court of Justice, the principal judicial organ of the UN recognized by IL, is only open to states in its contentious jurisdiction. Thirdly, when an individual suffers harm abroad, under IL, that individual cannot directly bring a claim against the state in which he or she is harmed. Such a claim must be placed by his or her nation state. Finally, when a state pursues such a claim, it is not acting as an agent of the individual, but is pursuing its own claim.¹⁸¹

However, in a more recent development, considered to be ‘one of the more signifi-cant features of contemporary international law’, the number of recognized subjects in IL has expanded to include international organizations and, to a limited degree, individuals. Other putative subjects of IL could include insurgents and national libera-tion movements.¹⁸² Nevertheless, here, consideration will only be given to international organizations, such as the International Labour Organisation (ILO), and individuals as members of indigenous peoples. Emphasis is placed on the status and subjectivity of indigenous peoples and their treatment within the system of contemporary IL.

These issues will be further examined in chapter 2.2.

1.2.2 State Sovereignty Challenged by the Human Rights Regime and