The changing face of state sovereignty at the end of the 20th century

The word “Sovereignty” has been an important political concept since its conception. Wars have been fought to claim the rights to it, it is something strongly affirmed in the UN charter as paramount (UN Charter), the possibility of having it violated or even lost brings serious negative reactions from the citizens of many countries. The Merriam Webster Collegiate Dictionary defines a sovereign as “one that exercises supreme authority within a limited sphere”- In 1648AD, treaties signed in Westphalia at the end of the 30 years war gave basically gave this “supreme authority” to state governments (which were at the time composed of monarchs) over whatever territory they controlled. Westphalian sovereignty defined, as supreme, the state government of any country in matters concerning its domestic affairs which in essence prohibits intervention in the domestic affairs of one state by any other sovereign state. This is the traditional definition given to sovereignty as applied to states.

On principle, “Sovereignty” is never to be violated (UN Charter). It acts as a baseline measuring device for international actions- if an action is a violation of “sovereignty” then it should be decried as such and seen as inherently illegal(UN Charter). However, although there is general agreement on how “sovereignty” should be treated, the definitions of what the word sovereignty “really” means are by no means concrete or universal. Any definition will vary vastly depending on who is asked when they are asked. Generally, no state will ever willfully admit that it violated this sacred trust called sovereignty. Rather, they will say that their action does not infringe on sovereignty for some set of reasons.

However, since that original concept of total non-intervention was espoused, this word, sovereignty, has undergone a process modification (especially during the 20th century) which continues to this day. The 20th century was the first century to see both multiple mass genocides as well as a Universal declaration of Human Rights. It saw the end of European global colonialism and the independence of scores of newly formed states who claimed the de facto Sovereignty. It also saw the start and end of a cold war in which the sovereignty of many states in both blocs was manipulated. “The bipolar world of the Cold War guaranteed the sovereignty of weak states because there could be no power vacuums. All states were important in the worldwide competition between the superpowers. The power struggle supported weak states by guaranteeing their territorial integrity, and the superpowers waged war-directly or by proxy-to maintain the territorial status quo.”(Callaway, 2) For the purposes of this paper, we are going to assume that cold war interventions took place during extraneous circumstances, namely the cold war struggle, and apply analysis of intervention primarily to the pre and post cold war events of the 1990’s and after. Following this cold war, another wave of state independence occurred. Many of the newly formed independent states have begun to fail, or have failed totally which has lead to sates which have “abused” of their sovereign power. This situation has lead to specific targeted intervention into domestic affairs of states. It has also lead the very important question, do the tenants of absolute Sovereignty (traditional sovereignty) apply to all entities claiming statehood.

Another factor affecting the change in eh nature of what sovereignty entails is an increased rate of globalization of economics and the spread of ”western” democratic values. As the globalization process continues, the actions of one states have effects which ripple through the web of connection and effect all other states in the system Add to this that improvements in communication technology have allowed NGO’s to become highly organized and the. An especially applicable intervention was the 1999 Kosovo incident which contains both issues of independence, and abuses of power (through crimes against humanity).

Since the concept of sovereignty is so integral to international relations, it is important to explore both the how and the why of what is driving these many changes and to furthermore look to what future end these changes may lead. Sovereignty, as it has traditionally been understood, is now a dying, soon to be dead concept. What might the “new” sovereignty be like??

The Way We Were: Sovereignty At The Start Of The 20th Century

Prior to World War Two, many leaders in the international community held the assumption that “…each state is sovereign, its right absolute, its will unrestrained, and free to resort to war at any time, for any purpose” (Jackson, 813) . However, the atrocities committed by Nazi Axis forces forced the allied world to re-examine these assumptions concerning state sovereignty in light of the horror of what had taken place. Was the systematic murder of millions excusable under the doctrine of sovereignty? It is true that General Sherman had accurately stated in the mid 19th century that “War is Hell”, but could the actions of the megalomaniac and corrupt regimes be relegated to legitimate actions of war??

Though faced with various options on how to deal with the defeated Nazi’s, including the summary execution of all surviving leaders, the Allied powers agreed to hold a legitimate tribunal to try the surviving Nazi’s as criminal even though there was no written law to support such a tribunal.  The subsequent Nuremberg War Crimes Tribunals of 1945 set a precedent that the leaders within a government could in fact be held responsible for atrocities committed within their own boarders and was in a way a redefinition of sovereignty.  No longer could a state act as if its rights were absolute, its will unrestrained, or as if it had the freedom, to resort to war at any time in any way it saw fit.  This placed a limitation on states which was not based on a bilateral treaty signed by parties, but on a superceding moral principle.

The Face Of Sovereignty Begins To Change

A doctrine in which the inherent right of the human being had begun to form was being given greater value. This doctrine found its first official culmination through the Charter of the United Nations (UN Charter preamble) and in the subsequent Universal Declaration of Human Rights. A clause of worthy note is Article 28. “Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.” The call for such an international order requires all states to limit their actions. Genocide is not to be condoned. Freedom of thought and belief is to be upheld. This declaration cleared away many of the ambiguities faced in Nuremberg as to what exactly a crime against humanity is. It is also a

Furthermore, the actions available to states were limited through the development of a coherent body, the United Nations, whose expressed purpose was to promote international cooperation and foster multi-lateral action. This was the second organization of its kind (the first being the failed league of nations), but the first to show success towards its purposes. The “United Nations provided an arena for demonstrating the equality of states in various ways…….The U.N. was (and remains) an important means of communication among states and a vehicle for influence and confrontation” (Callaway 2) This equality of states was rooted in the fact that each was sovereign, despite difference in territorial size, population, or monetary system. Even though the UN as a body has no specific army, and has no specific authority to create binding legislation over its member states, it has grown from conception into a truly global organization. Fifty-two years after its creation, the secretary general of the United Nation, Kofi Annan. Stated with conviction that

“I stand before you today as a multilateralist – by precedent, by principle, by Charter and by duty. I also believe that every government that is committed to the rule of law at home, must be committed also to the rule of law abroad. And all States have a clear interest, as well as clear responsibility (emphasis added), to uphold international law and maintain international order. Our founding fathers… recognized that, by agreeing to exercise sovereignty together, they could gain a hold over problems that would defeat any one of them acting separately.…. Any State, if attacked, retains the inherent right of self-defense under Article 51 of the Charter. But beyond that, when States decide to use force to deal with broader threats to international peace and security, there is no substitute (emphasis added) for the unique legitimacy provided by the United Nations.”

This bold statement affirms the fact that the United Nations as a body has altered the international political landscape in vast ways. States now must at least consider a multi-lateral approach to military action against other states and face consequences from their neighbors if they do not. In fact, in many cases States feel compelled to seek international approval of their actions before thy take them. In the same speech Annan states the fact that states “have shown…that they are willing to take actions under the authority of the Security Council, which they would not be willing to take without it.” This is a great departure from the former preeminence of state decisions. The absolute right to conduct foreign affairs with completely unrestrained will is gone. However, despite the effect that the UN has had upon what is acceptable state behavior, the UN has proven impotent in recent history and this has lead to other institutions, sometimes illegally (Kosovo 2) enforcing the principles which the UN presumes to embody. The most telling example of this was the NATO intervention into the Serbian Province of Kosovo in 1999.

Breif Historical Background Of The Kosovo Conflict

The former country of Yugoslavia was actually a federation of 8 separate units :six republics – Bosnia-Herzegovina, Croatia, Macedonia, Montenegro, Slovenia and Serbia - and two autonomous provinces in Serbia -Vojvodina and Kosovo. In 1974 when Kosovo was granted constitutional autonomy, the status of autonomous province was almost the same as the status of republic. Kosovo had an assembly, a judiciary, it’s own administration and was a part of all federal organizations as well as the Serbian organization. However, it wasn’t granted the express right to secede from the federation and declare total independence. This different status was granted because the Albanians who occupied Kosovo at the time were considered a nationality rather than a total nation since Albania was their “homeland”. Tension in the region between Albanians and the Serbs grew and grew with the Serbs claiming genocide and discrimination. Slobodan Milosevic was able to play of these nationalistic sentiments and used them to rise to power in 1987. In 1989, the autonomous status was revoked. Like all areas with different ethnicities, lands are claimed as sacred for various reasons. In a speech made during a rally in November of 1988 at Belgrade, Milosevic declared: “Every nation has a love, which eternally warms its heart. For Serbia, it is Kosovo. This rally was, attended by 350,000 people.

During 1989 and early 1990, the Serbian government passed a set of resolutions with the goal of changing the ethnic composition of Kosovo into a more Serbian place. 115,000 out of a total 170,000 Albanians lost their jobs and incentives for Serbs to move to Kosovo were put in place. After autonomy was revoked, government sponsored human rights abuses directed against the Albanians became widespread. Arbitrary arrest, torture, detention without trial and the like were all common place occurrences. One estimate says that one member of every Albanian family in Kosovo spent time in jail. The early 1990’s saw the outbreak of war in Croatia and Bosnia which preoccupied Milosevic from Kosovo issues.

The Albanians also began a non-violent resistance movement which did not provoke further Serbian aggression. In 1991 Kosovo Albanians, following the example of Croatia and Slovenia declared independence and help elections in private homes. The non-violent movement was embodied through a group known as the league for a democratic Kosovo. This group set up an entire functioning shadow government which had a fully functioning economy, levied voluntary taxes, and had a public educational system. This action flew in the face of the repressive Serbian regime and was done by the Albanians to prove to the international community that they did in fact deserve and independence from the Serb regime. However the International community turned a deaf ear to Kosovar outcries and ignored them in the Dayton accords.

In the mid 1990’s, a push was made for a third republic status equal to that of Montenegro however this was not supported internationally. The situation began to deteriorate. The LDK lost much of it’s non-violent support. The Kosovo Liberation Army (KLA) formed and began less passive activities even though many of it’s members still claimed to be members of the LDK. They began with guerilla tactic and in 1997 received arms from Albania proper when it collapsed as a state. In 1998 full scale armed conflict when the Serbs killed a KLA leader and his entire extended family. The Serbs mounted a full scale attack on a Village with helicopter gunships. Village militias formed across the entire province.

The domestic Serbian police force used excessive force against villagers even after resistance had ceased. In several villages, the civilians death toll, including was not women and children was not low. In addition to deliberate civilian killings many other human rights violations were committed by Serb forces and authorities. The KLA increased it’s activities and Serb repression was heightened. The Yugoslav army entered the region and targeted the Albanian civilian population an effort to stop the spread of the KLA. KLA abuses also increased with abductions and detentions. The Serbs also participated in theses activities as well as setting fire to homes and participating in multiple summary executions as well This was not a good situation for either of the parties. Although precise statistics were not gathered, it is estimated that at beginning of August 1998, between 200,000 and 300,000 Kosovar Albanians had been displaced from their homes as a result of Yugoslav attacks that included the deliberate shelling of cities and villages.

NATO took notice of what was occurring and negotiated a ceasefire with Milosevic who complied and began to withdraw his troops during the fall of 1998. They then proceeded to arrest several KLA members on valid charges of terrorism, however some due process violation did occur. The KLA did not disarm and re-entrenched, the peace process stalled, a greater escalation of violence occurred in January/February of 1999. The NATO alliance lead a bombing campaign which utterly defeated what was left of Yugoslavia and lead to troop deployments for peace in the region. During this campaign, Some ethnic cleansing did occur but hard numbers are still difficult to determine. Hundreds of thousands of refugees were created.

The Repercussions And Aftermath Of The Conflict

Following this intervention then USA President William Clinton stated “Whether you live in Africa or Central Europe or any other place, if somebody comes after civilians and tries to kill them en masse because of their race, their ethnic background, or their religion, and it is within our power to stop it, we will stop it. We should not countenance genocide or ethnic cleansing anywhere in the world” (Rauch 1665)

This statement has become known as the Clinton Doctrine. This doctrine, which again was found to be illegal though legitimate by the International Kosovo Commission, espouses the most drastic move from traditional westphalian state sovereignty. According to this doctrine the burden of maintaining the peace and security falls squarely on the shoulders of each independent state, and if they shirk this responsibility, then they will be stopped by outside intervention. This doctrine seems to assume that “Human Rights” are a natural, unalienable right and that sovereignty is more of a responsibility than a right.

However, even based on such laudable principles as genocide prevention, this Clinton doctrine was in direct violation of Yugoslav sovereignty. The Kosovo conflict began as a civil war within a Federal Republic, even though said government was repressive and the intervention was not carried out by the UN but instead by a military alliance lead by the United States of America. The “Unique (legalized) legitimization” alluded to by Kofi Annan was not present in this action. Rather, one alliance took it upon itself to alter the internal affairs of a sovereign state. On the surface, this seems to be a gross violation of international norms. And it truth, that’s exactly what this action was. It was illegal. And yet, even though it was unequivocally illegal, it is still accepted in many circles as a legitimate action (This is the stand taken by the Commission on Kosovo).

The “New” Sovereignty

When the Nuremberg trials were first purposed and then conducted they addressed a serious discrepancy between the status of what was assumed allowed under the law, and what just morally should not be allowed. The Tribunals then proceeded to, through their actions, redefine the legal notion of sovereignty and show that states are responsible towards their citizens. A similar situation occurred in 1999. The Activities occurring in Kosovo ran contrary to moral sensibilities. Ethnic cleansing is wrong, period, non-negotiable idea. These moral sensibilities actually have been codified as fore-stated in a Universal Declaration, but in the Kosovo situation, the enforcing body, namely the United Nations, refused to act. The reason for the inaction is immaterial, the fact still remains that the body refused to act in this situation. This leaves the western powers of NATO in a paradoxal situation. By the inherent rules of the system, it is illegal for them to aggressively intervene in the domestic affairs of a state. Yet Human rights abuses were occurring which are also illegal and morally reprehensible. Which is more justifiable, action or inaction, legalism or moralism?? Even though the action was in fact illegal, I must agree with the commission that it was justified and legitimate at the time. The Clinton Doctrine brings into focus a need of the current system. If there is no enforcement of the rules, then of what good are these rules. It also solidified the new aspect of sovereignty, that it is involuntarily forfeitable. It can be taken away if it is deemed that you state does not use it's rights properly.

This raises a very serious question: when?? When is sovereignty forfeited? When can one state claim the right to intervene in another without invitation? Is it only during cases of a violent genocide or can it be forfeited over smaller issues such as the death penalty. The current system places the burden upon the UN to decide these issues but it has proven itself impotent to act. Does this give powerful alliances such as NATO, or even powerful states such as the United States the right to intervene when it sees fit??

The answer to this will play a key role defining the nature of the international system of the 21st century. There are many possible solutions. As Professor Robert Keohane points out, states constantly exercise their sovereignty by limiting it. They voluntarily enter into treaties which limit their abilities to erect tariffs or pollute the environment. Perhaps a new, all encompassing treaty could be drafted in which states exercise their sovereignty by deferring to an international commission?? I think that the fact that states still totally ignore the Universal Declaration of Human Rights as seen in proves that this is not a viable path.

The answer can still lie within the UN. As fore stated, many of the human rights issues are taking place within states which newly received independence, or are in the process of reaching independence. Whenever any newly form state wishes to be acknowledged, it must first demonstrate to the UN that it in fact is “mature” enough to handle the burdens of true Sovereignty. Until that time, it can build up it’s infrastructure as a protectorate of sorts of the UN. This concept is similar in spirit to ideas propounded by Michael Ignatief. Consider a system in which all current and future states would be help accountable to certain specific norms. Is there a repressed minority, or do all citizens have equal protection under the law?? Does the government control all of it’s claimed territory? (Ignatief). Is the government in financial default?? Did the current regime rise to power through violence overthrow or peace?? If these questions can be answered correctly, then the state can be admitted into the UN as a fully and equal member with full and equal rights. If a formerly approved state does not meet these criteria, then it could be placed on a probation program to aid it’s recovery. This system would require all states to exercise some of their sovereignty by giving it up. They would no longer acknowledge as a sovereign right the right to fail and would accept assistance when necessary. This system would provide clear goals so that engagements would have limited duration and be highly directed. Under this system, the Kosovo war would never have occurred because the shadow government would have been able to earn recognition easily.

Since its conception in the mid 17th century, the concept of sovereignty has undergone much testing and change. The rights of humans as individuals have become much more important, and the right to intervene as been suggested and is now under debate. Genocide is condemned and many states now feel a moral obligation to act when necessary. However, in the current system, the UN still remains impotent. This is why this paper proposes a system in which the UN is empowered to have stronger standards. In this new world order, states do remain sovereign. However each state only its right to conduct non-violent activity remains absolute, its will is restrained by international new, evenly enforced norms, and free to resort to war only in the defense of humanity.


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