Are there any limits to what a sovereign state can do?

by John Lee

At first reading, this question would appear to have one simple answer: no. Why? Because if sovereign is defined as supreme or without higher authority, it indicates that when applied to a state, there is no superior controller of that state’s actions and it is therefore unfettered in what it may or may not get up to on the world stage. But this essay will argue that such an interpretation is too crude. While acknowledging the historical input of Machiavelli and Bodin in establishing the norm of summa potestas – the sum or totality of power i.e. sovereignty – it will point out that in today’s international politics, sovereignty has a rather different definition. According to Alan James the irreducible minimum requirement of sovereignty in a global context is being constitutionally self-contained as well as having equality with other states in international law. Certain rights come with such status, but also responsibilities to respect international law and to not interfere with the rights of others. This essay will highlight the several factors which affect a state’s capacity to exercise sovereign power, examine the claim by pluralists such as John Burton that sovereignty has little relevance in today’s interdependent world and put into context the roles of nationalism and national interest in defining sovereign states’ behaviour.

With the disintegration of medieval feudalism, the barons and warlords arrogated titles such as duke, prince or king to themselves. Territories recognisable as future sovereign states began to be established and in Machiavelli’s The Prince, the rulers of these territories had a manual of how to conduct their statecraft. Jean Bodin’s De Republica further provided a theory of how to validate sovereign power. He said that a ruler’s power was God-given and he was entitled to deference as the supreme authority. If a ruler acknowledged no superior, was this not also true of his state? And if so, did that not mean a state was free to do whatever it desired? Well, not quite. As will be seen, Bodin’s theory of unlimited sovereignty does not stand up to scrutiny in the modern world.

It was with the Westphalian settlement of 1648 that the criteria of sovereign status were established: fixed territory with defined boundaries; a permanent population; and a government capable of exercising control and of observing international obligations. However, simply meeting these criteria is not enough. In order to be regarded as legally sovereign, a state must be recognised as such which, on the world stage throws up a number of anomalies. Take two Chinese cases. After the collapse of imperial China, Tibet claimed sovereign status yet was never accepted by the wider international community. Taiwan, too, claims sovereign status yet few others recognise it as not constitutionally joined to Beijing. It therefore finds itself limited in what it can legally achieve as a ‘sovereign’ entity.

Along with constitutional self-containment, a sovereign state has equality with other states in international law. This allows it to: control its own domestic affairs; act in self-defence; enjoy freedom from intervention (other than in UN-sanctioned situations); create laws; and take part in international diplomacy. Legal rights come with responsibilities to observe those rules – yet more constraints on a sovereign state. Legal equality does not necessarily imply absolute equality to act on the world stage, either. A number of factors exist to make some states more sovereign than others. And it is these factors that limit what a sovereign state can and cannot do.

Military capability is widely regarded as a key indicator of a state’s standing and is inextricably bound to the concept of national interest. For Hans Morgenthau, the acquisition of power is the primary national interest. Hobbesian realism would concur with this. But some sovereign states have accrued more of this power than others and therefore a greater capability to act without limit. The sole superpower, the United States, or Great Powers such as Britain, China and Russia are capable of militarily influencing events on a global scale. The same cannot be said of small powers such as Singapore which, even though it is a sovereign state, is limited in what it can achieve. The alternative for such a state is to employ ‘soft power’ – economic, diplomatic and political – in an effort to reach its goals.

The issues of military power and the limits of action are thrown into sharp focus when it comes to intervention. Can the use of uninvited military action by one or a number of sovereign states within the borders of another sovereign state ever be justified? Realists such as Morgenthau and John Mearsheimer would likely say ‘No’. Rationalists on the other hand would answer with a qualified ‘Yes’, the qualification being that such intervention would need to be on humanitarian grounds. That is, where there is a massive loss of life either through genocide or government collapse or where peace is threatened. A further qualification would be that any action would require the assent of the UN.

While military capability may be seen as the primary limit on a state’s capacity to exercise power, it is far from the only one. A country’s geography – it’s size, climate, frontiers and location on the world map – are crucial, as is its ethnic mix and political culture. Economic strength must also be taken into account: states with a powerful, fully-functioning economy are clearly in a better position to attain their objectives than those without. Diplomacy, too, plays a key role with membership of IGOs cuch as the UN, the EU, ASEAN or the WTO giving a state leverage on the world stage.

Over and above endogenous limitations, there are supranational factors which affect a state’s capabilities. As pluralist John Burton indicates, sovereignty’s relevance is diminishing in an interdependent world. He asserts that military and technological developments have destroyed the notion of sovereign self-reliance: Bodin’s theory of unlimited sovereignty is blown out of the water. With the march of globalisation, all policy-making has domestic as well as foreign implications which means further constraint on activity. The growth of nationalism since the 18^th Century can further be seen as threatening the concept of the sovereign state. This comes in the form of secessionism, with the parent state being diminished by the breakaway and the scarcely viable states that come into existence having little ability to exercise sovereignty.

So it can be seen that there are numerous limits to what a sovereign state can do. As CAW Manning points out, by seeking and attaining sovereign status, a state agrees to be bound by international law, which necessarily means constraining action in order to abide by the rules. If a state is in breach of international law while trying to reach its own goals, the international community is then at liberty to take interventionist action. And in any case, simply desiring a certain outcome does not necessarily mean it can be achieved. Military capability, economic strength, place on the world map and membership of IGOs or military alliances all help determine a state’s chances of achieving a certain aim. Pluralists such as Burton and Rosenau also point out that in an increasingly interdependent world, where nationalism is still in the ascendancy, the very concept of sovereignty is undermined. All of which leads to the conclusion that Bodin’s 16^th Century view of a state’s absolute superiority does not hold in the 21^st Century and that there are indeed limits to what a sovereign state can do.

Does law have a role in maintaining international order?

By John Lee

In its widest sense, law can be defined as a system of rules enforced through a set of institutions. Within a country, a supreme legislature creates laws which are enforced by a judiciary. On the global stage, however, no overarching international body exists to make laws nor is there an international judiciary and police force to ensure they are kept. All of which must lead the scholar of international relations to question whether international law is really law at all or, as John Fried asserts, merely a ‘weak and defenceless’ construct with little or no practical use. This essay will argue that while there are a multitude of problems associated with international law, it is a vital mechanism in the maintenance of international order and, moreover, one which, as Charles Kegley points out, most state actors accept as real and abide by most of the time. But first, it is important to locate the sources of the rules of global behaviour.

Article 38 of the Statute of the International Court of Justice defines the sources of international law thus. The first, customary law, is formed by the common practices of states over a period of time. For example, much of the law of the sea has developed on this basis. In order for customary international law to work, there has to be an acceptance by states that it is legally binding. Some states are bound by it even when they protest because the vast majority of states have consented. Such was the case during the years of apartheid when the South African government protested that its racial policies did not breach international law even though the international community considered them illegal. The second source of law is the treaty, which comes in two varieties: bilateral when concluded between two states and multilateral – such as those governing the exploration of the Antarctic, the seabed and outer space – when anywhere between three countries and the entire world are involved. The third main source of international law is the UN resolution, the most important of which earn the title Declaration, as in the Declaration of Human Rights. But even though there is expectation that states will abide by their provisions, Declarations are still only UN Resolutions and cannot be made legally binding, which highlights the greatest sticking point in international law: how to police it.

In a debate for Legal Affairs magazine, Chicago University’s Eric Posner suggests that enforcing the rulings of international courts and tribunals is nearly impossible. He questions why states continue creating international tribunals such as the International Criminal Court and the International Tribunal for the Law of the Sea when they appear to lack the capacity to influence the actions of other actors. Similarly, he argues, tribunals to adjudicate on war crimes in Rwanda and the former Yugoslavia have been farcical due to the tiny number of wrongdoers convicted and the platform such hearings provide for those on trial to stir up xenophobic reaction at home. In reply, Yale Law School’s Oona Hathaway contends that the records of such international tribunals are not as bad as Posner paints, that the ICC and ITLOS are still in their formative years and that rulings they have made enjoy a good record of compliance. She also points to the effectiveness of the International Court of Justice in solving border disputes, arguing that it is in disputants’ interests to abide by this Court’s rulings as the alternative would mean neither side being able to invest in a border area without fear of future retribution or loss. But underlying this entire debate is the principle of compliance of sovereign states interacting in a system of global anarchy.

As Kegley points out, sovereignty means that no authority is legally above the state except that which the state voluntarily confers on the international organisations it joins. In other words, states cannot be compelled to perform their legal obligations since there is no body to punish them if they don’t. So why do most states seem to abide by international law? One reason is reciprocity – that is, a state will meet its legal obligations because it wants other states to do the same. For example, the non-intervention norm requires states to refrain from acting uninvited within another’s boundaries. Then there is diplomatic immunity: a state will observe another’s diplomatic immunity because it wants the same observance in return. A less empirically-based principle for a state’s compliance is that of international standing. Reputation increases an actor’s soft power – ie, the ability to achieve its goals by non-military means. If you play by the rules you will receive rewards, says Kegley, and the long-term advantages of observing international law can be seen to outweigh the short-term benefits of violating it. This idea is imbricated with the concept of legitimacy. As Thomas Franck argues, legitimacy is functional when states desire to be recognised as a member of a community in which they learn to abide by the rules in order to secure the benefits of membership. Such self-enforcement, says Franck, explains the willingness of state leaders to comply with international rules since non-compliance leads to disrepute and isolation.

The legal status of these rules plays a part in the establishment of regimes – bodies of regulations which lay down the norms of conduct in areas such as trade, commerce, arms control and the exploration of the seabed. Stephen Krasner cites the General Agreement on Trade and Tariffs (GATT) – the forerunner of the World Trade Organisation – as a classic example of a successful regime while others include the Common Agricultural Policy and the Exchange Rate Mechanism. Going hand-in-hand with regimes are international organisations – global, like the UN; regional, like the EU and inter-governmental, like NATO. Pluralists see such organisations as portents of an international community of mankind – an interconnected global village. Realists, on the other hand, view them as instruments of their members. A case in point being the UN, which in effect can do little without the backing of the US. Turning this concept on its head, the US sought the backing of the UN to legalise its invasion of Iraq in 2003 for what might be called a ‘just war’.

So what is a ‘just war’.  The concept in a modern framework can be traced back to the thinking of Hugo Grotius, the Dutch lawyer who challenged the Catholic and Protestant belligerents in the Thirty Years War of (1618-1648) to abide by humane standards during combat. He said a war should only be fought in self-defence to punish damages caused by an adversary’s blatant act of armed aggression and that for war to be moral, it must be fought by just means without harm to innocent non-combatants. In the modern arena, the Geneva Conventions of 1949 - rules limiting the barbarity of war – can be seen as a logical development of Grotius’s principles.

But what would Grotius have made of Bush’s invasion of Iraq in 2003? Paust points out that many critics consider the attack a preventive war, which would be a breach of international law, thus making the US a ‘rogue state’.  Even realists were perturbed by the action. At the end of 2002, while the UN Security Council frantically negotiated prior to the invasion, 34 leading realists took out an advert in the New York Times saying that a war with Iraq was not in the national interest. John Mearsheimer and Stephen Walt also questioned why the US had abandoned its policy of deterrence, which had been so success sful during the Cold War. Some have even said, controversially, that George W Bush and his ally, Britain’s Tony Blair should be put on trial for war crimes by the UN’s International Criminal Court. The debate on this still goes on.

In conclusion, it is evident that law is a fundamental control element in the maintenance of international order. It oversees the rules of international trade and commerce; encourages reciprocity of behaviour between states at a diplomatic level; stands up for human rights, health and the environment via UN Resolutions and Declarations; arbitrates on border and regional disputes through the International Court of Justice; promotes the use of soft power as opposed to military intervention; and when combat cannot be avoided, puts checks and measures in place to ensure a ‘just war’ with as little barbarity and civilian loss of life as possible. When there are trangressions, rogue states’ leaders may be indicted as war criminals and punished by the UN’s International Criminal Court. So it can be seen that international law is not the ‘weak and defenceless’ construct described by Fried. Rather it is the nearest thing to an overarching authority we have under the global community’s prevailing condition of anarchy.