Sovereignty: The Battle for the Hearts and Minds of Men

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Chapter 5: Indigenous Data and Policy in Aotearoa New Zealand, Andrew Sporle, Maui Hudson and Kiri West S Krasner ‘Sovereignty and its Discontents’, in BA Simmons (ed), International Law vol 2 (Sage Los Angeles 2008) 85–119. Those questions have come to the fore again recently following the emergence of the principle of responsibility to protect. That principle was first articulated by a group of experts in 2001 and then codified in a UN General Assembly Resolution (UNSC Resolution 1674 of 28 April 2006 [UN Doc S/RES/1674]; see also the 2005 World Summit Outcome). It is still unclear whether that principle has binding force and in particular whether it has binding force as customary international law. The exact scope of its divergence from the current legal regime of humanitarian intervention also remains to be established. In particular, it is important to clarify whether the responsibility to protect implies, besides the human rights duties of the sovereign State in question and its own responsibility to protect as it already exists, actual duties to intervene and more precisely duties on the part of other States and/or the international community itself and along which modalities of subsidiarity. The second part of the 20 th century corresponded to the establishment of modern international law and of the new conception of international law qua law of cooperation between sovereign States.

The King 'Should Be' Sovereign: Christine de Pizan and the Problem of Sovereignty in Fifteenth-Century France, Kate Forhan (University of Southern Maine, USA) A third sovereignty right one should mention is the sovereign’s right to constitutional or organizational autonomy. This is a consequence of the plenary jurisdiction over the State’s internal affairs ( Nicaragua Case 133). It can be equated with self-determination, at least when it pertains to the institutional autonomy of existing sovereign States. When self-determination is used to imply the right to become a sovereign State, international law remains ambivalent ( UNGA Resolution 1514 (XV) ‘Declaration on the Granting of Independence to Colonial Countries and Peoples’ [14 December 1960] GAOR 15 th Session Supp 16 vol 1, 66). Thus, questions largely unanswered to date include the relationship between State sovereignty and self-determination in case of conflict. Another difficult question is whether international law actually can set limits over the right to self-determination when it goes further than a right to institutional autonomy and is said to include the right to become a sovereign State in the first place. These issues have surfaced recently pertaining to the international legality of secession in particular (see the ICJ’s Kosovo Advisory Opinion on the nature of the question, and in particular judges’ concurring and dissenting opinions). Another connected issue pertains to the positive dimension of the right to self-determination and more particularly its democratic implications. Pushed to its full normative conclusions and in line with the values of good polity underlying modern sovereignty indeed, self-determination triggers minimal democratic duties in the laying-out of the governmental regime on the part of each sovereign. G Sørensen Re-examining Sovereignty. From Classical Theory to the Global Age (Macmillan London 2000). As presented before, sovereignty is alternatively or cumulatively referred to as ultimate power and supreme authority. Externally, it implies a degree of independence or freedom. As a legal regime or status, international sovereignty, and more particularly international external sovereignty entails the rights that can guarantee sovereign independence, but also the duties that correspond to those rights in a community of equal sovereigns where all rights are reciprocal.Ryan’s writing style is not so intense that the reader must reread parts to understand them. However, I would say that Ryan uses a strong vocabulary and has a great way of getting his point across. He kept the content concise and pertaining to the overall theme of the book and the individual chapters. Secondly, material and economic interdependence between States has meant increased institutional cooperation at a transnational, international, and supranational level, and the creation of corresponding IOs. The delegation of sovereign competences to IOs is compatible with the sovereignty of Member States and does not turn IOs into sovereign States (see Reparation for Injuries Suffered in the Service of the United Nations [Advisory Opinion]). Stephen Krasner weighs in on a growing debate over the continued relevance of sovereignty today. Is it declining or not? Is the state system about to be replaced by something else? Krasner's book will spark much debate and become required reading for all those who wish to think seriously about the nature of sovereignty today." —Hendrik Spruyt, Columbia University Well before international sovereignty was deemed to be law-based and hence inherently limited through law, it was regarded as a source of law. The classic paradigm of sovereignty was precisely that international law could be based exclusively on sovereign States’ consent. Self-limitation was the condition for the binding nature of international law on sovereign States. Nowadays, the inherent legality of sovereignty is one of the central characteristics of modern sovereignty and especially of popular sovereignty. And this is also true of modern international sovereignty since 1945.

Authors like Bodin or Hobbes feared the division of sovereignty as much as its limitation. In a post-Westphalian world where competences are not only transferred, but also concurrent or shared, however, such fears have become obsolete; the division of competences has indeed become the rule in the EU and beyond. This applies in almost all domains and at all degrees of authority. The division of sovereignty can be vertical or horizontal, depending on whether it takes place among distinct political entities such as two States or between a State and the EU, or whether it takes place within a single political entity according to territorial or other federal divisions or according to distinct political functions. In the EU, the division of sovereignty goes along both vertical and horizontal lines. Stephen Krasner played a key role in transforming state sovereignty from a neorealist presumption into an object of sustained inquiry. Thus his new book is particularly noteworthy. . . . Keeping different kinds of sovereignty straight is crucial to the study of international relations, whether at the hands of neorealists or constructivists, nonliberal institutionalists, or postmodernists. ---Fred H. Lawson, The Annals of the American Academy of Political and Social Science The price to be paid for this honesty, though, is that for most of the book Tombs is writing less as a scrupulous historical scholar and more as a political polemicist. The difficulty is that the two sides of his persona never really cohere. He makes, for example, a good historical case that the declinist narrative of the 1950s and 60s that led Britain to see membership of the common market as its only route to salvation was exaggerated. But he then bases most of the book on a very similar trope of Europe as “a declining Continent”. What the historian challenges, the polemicist embraces. Maggie Walter (Palawa) (PhD, FASSA) is Distinguished Professor of Sociology at the University of Tasmania, Australia. Publishing extensively in the field of Indigenous Data, including Indigenous Statistics (with C. Andersen 2013 Routledge), Maggie is a founding member of the Maiam nayri Wingara Indigenous Data Sovereignty Collective and the Global Indigenous Data Alliance.I Boerefijn and JE Goldschmidt (eds) Changing Perceptions of Sovereignty and Human Rights: Essays in Honour of Cees Flinterman (Intersentia Antwerpen 2008). Another vexed issue is related to the legitimacy of international law debate. If under the modern concept of sovereignty, international law no longer binds only by self-limitation of the sovereign, but on the contrary by reference to the people whose autonomy is at stake, many doors open regarding the legitimate authority of international law for other subjects of international law, including individuals and IOs. More work is needed, however, to understand how international law may bind some subjects and not others, and, when it binds different subjects, whether it binds them differently and how their duties relate given their interconnection through sovereignty. Further exploration of the ways in which international law may be produced in a more democratic fashion, and under what mechanisms, is also called for. Even recited so suavely, these doctrines are no more convincing to the unbeliever. Given Tombs’s genuine intellectual standing, this is probably as good as it gets. Brexit, like it or not, is a fact, and it would be a great service to us all if someone could set out a half-convincing case for why it makes sense. Since Tombs can’t, maybe nobody can. A-M Slaughter, ‘Disaggregated Sovereignty: Towards the Public Accountability of Global Government Networks’ (2004) 39 (2) Government and Opposition 159–90. L Henkin ‘That “s” Word: Sovereignty, and Globalization, and Human Rights, et cetera’ (1999) 68 FordhamLR 1–14.

There are four sovereignty duties corresponding to the rights mentioned above: immunity of other States and State agents before one’s jurisdiction; respect for international law and duty to cooperate; prohibition of intervention; duty of peaceful dispute settlement. Those main sovereignty duties are listed, among others, in Art. 2 UN Charter and in the 1970 Friendly Relations Declaration. By contrast, numerous variations of the principle and so-called ‘correlated’ principles of sovereignty, as opposed to the principle of sovereignty itself, can be found in conventional international law. This is the case in particular of Art. 2 (1) UN Charter for the principle of sovereign equality, but also in the Friendly Relations Declaration (1970) for the detailed rights that follow from that principle of sovereign equality. The UN Charter also protects sovereign States’ domaine réservé and prohibits other States’ intervention on sovereign States’ territory (Arts 2 (4) and (7) UN Charter). Further correlated principles to the principle of sovereign equality may be found in general principles of international law and customary international law, and have been progressively recognized in international adjudication. H Kelsen Das Problem der Souveränität und die Theorie des Völkerrechts. Beitrag zu einer reinen Rechtslehre (Mohr Tübingen 1920) 204–05, 251–53. Foucault and Agamben on Sovereignty: Taking Life, Letting Live, or Making Survive, Carlo Salzani (Messerli Research Institute, Vienna, Austria)

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In response to this difficulty, some authors have suggested the idea of limited sovereignty. The problem then is to know when sovereignty is so limited or fragmented that there can no longer be any talk of sovereignty. The concept of sovereignty implies a certain amount of intensity or of competence over a certain range of matters. As presented before, legal sovereignty is a general competence, ie a competence to determine one’s particular competence; as such, it requires a minimal level of control over those competences. In other words, is there a threshold below which sovereignty is emptied of any content and if so, where does that threshold lie? Importantly, this quest for the democratic legitimacy of international law qua source of democratic sovereignty does not necessarily amount to an attempt at politicizing the international community qua sovereign polity or even qua sovereign global state. It may be a consequence but not a necessary one. Other forms of global or international demoi-cracy can be explored. Part of the answer comes from indirect State democracy as international democratic and human rights standards develop as minimal common standards, but direct democratic legitimation is also needed as in a federal polity. While Austin and command theorists give priority to political sovereignty over legal sovereignty, Hart and later positivists have criticized that approach and give priority to legal sovereignty over political sovereignty. Other authors like Kelsen argue, on the contrary, that political and legal sovereignty are identical because the law subsumes the political and cannot therefore be put in any relationship of priority. More recently, some authors have tried to dissociate legal and political sovereignty and re-associate legal to institutional sovereignty. Of course, the internationalization of modern sovereignty goes hand in hand with the democratization of international law itself. If international law is allowed to regulate internal matters, its democratic legitimacy has to be guaranteed. As this is clearly not yet the case, even in a non-statist minimal model of democracy, the legitimacy of international law is still open to debate. And so is that of its role in the limitation and constitution of domestic sovereignty. As long as those questions have not received a satisfactory answer, the resilience of the Wimbledon self-limitation approach in certain parts of international law, as exemplified in the International Court of Justice (ICJ)’s Military and Paramilitary Activities in and against Nicaragua Case (Nicaragua v United States of America) (‘ Nicaragua Case’; at para. 263) and arguably in the ICJ’s Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion) (‘ Kosovo Advisory Opinion’; at paras 56 and 123), should not come as a surprise. In case of violation of the minimal right to have rights and of minimal sovereignty duties as a result, ordinary mechanisms of international dispute settlement can be triggered, ranging from political recommendations to full adverse judgments depending on the sources of the rights violated and the mechanisms available. Those mechanisms imply some kind of international institutional framework through which other States but mostly individuals can initiate claims against a sovereign State.

In the digital age, governments are increasingly dependent on data and data analytics to inform their policies and decision-making. However, Indigenous Peoples have often been the unwilling targets of policy interventions and have had little say over the collection, use and application of data about them, their lands and cultures. At the heart of Indigenous Peoples’ demands for change are the enduring aspirationsof self-determination over their institutions, resources, knowledge and information systems.

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In short, State sovereignty cannot be dissociated from the protection of the political equality and human rights of the individuals constituting that State, and cannot per se be regarded as incompatible with the values it is meant to help pursue. However, given the value of both individual and collective autonomy in the human rights context and their potential contradictions, two different consequences follow depending on the kind of international human rights norms at stake. R Keohane ‘Political Authority after Intervention: Gradations in Sovereignty’ in RO Keohane and JL Holzgrefe (eds), Humanitarian Intervention (CUP Cambridge 2003) 275–98.