You are on page 1of 21

CHALLENGES TO STATE

SOVEREIGNTY IN CONTEMPORARY TIME

INTRODUCTION
1.1 SOVEREINGTY: A CONTEXTUAL OUTLINE
The idea of states as autonomous, independent entities is collapsing under the combined
onslaught of monetary unions, CNN, the Internet, and nongovernmental organizations. But
those who proclaim the death of sovereignty misread history. The nation-state has a keen
instinct for survival and has so far adapted to new challenges even the challenge of
globalization.
- By Stephen D Krasner
(International relation professor, Stanford University)
Sovereignty is best defined as a sphere of authority and autonomy - the legitimate power to
govern. It is often said that whatever the institutions of government, sovereignty resides in the
people and it is the people who determine how they will be governed. This is the internal
aspect of sovereignty. Sovereignty also has an external aspect. The people as a sovereign
entity should be respected in their autonomy and should be allowed to determine their
relationship with other sovereign peoples. This is often referred to as the right of peoples to
self-determination.
The Sovereign State Is Just About Dead
It is a very wrong and misunderstood point. Sovereignty was never quite as vibrant as many
contemporary observers suggest. The conventional norms of sovereignty have always been
challenged. A few states, most notably the United States, have had autonomy, control, and
recognition for most of their existence, but most others have not. The polities of many weaker
states have been persistently penetrated, and stronger nations have not been immune to
external influence. China was occupied. The constitutional arrangements of Japan and

Germany were directed by the United States after World War II. The United Kingdom,
despite its rejection of the euro, is part of the European Union.
Even for weaker states whose domestic structures have been influenced by outside actors, and
whose leaders have very little control over trans-border movements or even activities within
their own country sovereignty remains attractive. Although sovereignty might provide little
more than international recognition, that recognition guarantees access to international
organizations and sometimes to international finance. It offers status to individual leaders.
While the great powers of Europe have eschewed many elements of sovereignty, the United
States, China, and Japan have neither the interest nor the inclination to abandon their usually
effective claims to domestic autonomy.
In various parts of the world, national borders still represent the fault lines of conflict,
whether it is Israelis and Palestinians fighting over the status of Jerusalem, Indians and
Pakistanis threatening to go nuclear over Kashmir, or Ethiopia and Eritrea clashing over
disputed territories. Yet commentators nowadays are mostly concerned about the erosion of
national borders as a consequence of globalization. Governments and activists alike complain
that multilateral institutions such as the United Nations, the World Trade Organization, and
the International Monetary Fund overstep their authority by promoting universal standards
for everything from human rights and the environment to monetary policy and immigration.
We will discuss these challenges in more explanatory manner. But before going to challenges
let us try to know what state sovereignty is and why sovereignty is important for a state. What
are the different factors that are posed as challenges to sovereignty in this contemporary
time?

SECTION I:
1. WHAT IS SOVEREIGNTY?
The state is made of four basic components namely population, territory, government
and sovereignty. Sovereignty forms an essential mark of statehood and it is an indispensable
component of the state. Sovereignty is the basic quality of the state. J.W.Garner defines the
state as:

a community of persons more or less numerous, permanently occupying a definite


portion of a territory, independent or nearly so of external control and possessing an
organized government to which the great body of inhabitants render habitual obedience.
Sovereignty is the most essential attribute of the state which differentiates it from all other
associations. J W Garner defined sovereignty as that characteristics of the state in virtue of
which it cannot be legally bound except by own will or limited by any other power than
itself.1 Usually, sovereignty is defined in one of two ways. The first definition applies to
supreme public power, which has the right and, in theory, the capacity to impose its authority
in the last instance. The second definition refers to the holder of legitimate power, who is
recognized to have authority. When national sovereignty is discussed, the first definition
applies, and it refers in particular to independence, understood as the freedom of a collective
entity to act. When popular sovereignty is discussed, the second definition applies, and
sovereignty is associated with power and legitimacy.
The term 'sovereignty' is derived from the latin word 'superanus' which means
supreme.2 The very term is self-explanatory and conveys the absolute and ultimate power of
the state in its territorial domain. Definitions of sovereignty, like definitions of the state are
many and varied. Jean Bodin, the first writer to develop a systematic doctrine of sovereignty,
defines iras "the supreme power over citizens and subjects, unrestrained by law". Grotius,
who wrote half a century later, defined it as "the supreme political power vested in him whose
acts are not subject to any other and whose will cannot be overridden". Jellinek defined it as
"that characteristic of the state in virtue of which it cannot be legally bound except by its own
will, or limited by any other power than itself'. Duguit, a French Professor, describes it as the
commanding power of the state; it is the will of the nation organized in the state; it is the right
to live unconditional orders to all individuals in the territory of the state". Burgess, an
American writer, characterizes it as "original, absolute, unlimited power over the individual
subjects and over all associations of subjects". Soltau describes sovereignty as the exercise of
"final legal coercive power by the state".3

1 Book Gauba O P, Ann introduction to political theory, 6 th edition, macmillan, 2014, 177
P

2 ibid
3

. The traditional concept of sovereignty conveyed by such definitions views the state as a
supreme and unrestrained agency, which through its coercive power can compel individuals
and associations within its territorial confines, to obey its commands. Monopoly of power to
punish those who violate its commands is the most fearsome aspect of the state's sovereignty.

1.2

TYPES OF SOVEREIGNTY:

The term sovereignty is used in different senses, and failure to distinguish the various types
results in much confusion.
1. Legal Sovereignty: It is the conception of sovereignty in terms of law. It is the lawyer's
conception of sovereignty. It is the supreme law making power in any society which is not
bound by any law but enjoys habitual obedience from the people. Violation of the commands
of the legal sovereign is visited with punishment. According to Garner, "The legal sovereign,
therefore, is that determinate authority which is able to express in a legal form the highest
commands of the state that power which can override the prescriptions of the divine law, the
principles of morality, the mandates of public opinion, etc." Courts recognise only the laws
made by a legal sovereign. Law is nothing but the command of the legal sovereign. It is the
source of all legal rights. The concept of legal sovereignty found the most comprehensive
treatment in Austin's theory of sovereignty known as Monism. Such a sovereign is found in
England in the King-in- Parliament, The British Parliament, with the consent of the monarch,
is competent to issue the highest commands of the state. It is not easy to locate legal
sovereignty in a unified and definite body in most other countries as the supreme law making
power is shared by a number of organs.
2. Political Sovereignty: While the legal sovereign is the supreme lawmaking and lawenforcing authority, there is behind it the will of the people which is the final source of
authority. In the words of Dicey, "Behind the sovereign which the lawyer recognises there is
another sovereign to whom the legal sovereign must bow That body is politically sovereign,
the will of which is ultimately obeyed by the citizens of the state". Gilchrist defines it as "the
sum total of the influences in a state which lie behind the law". John Locke for the first time
discerned the importance of Political sovereignty. He spoke of People's right to "appeal to
3 Book Gauba O P, Ann introduction to political theory, 6 th edition, macmillan,
2014,179-182P
4

heaven"(right to revolution) in case a government has violated the trust reposed in it. The
term 'political sovereignty' is vague and indeterminate. It is very difficult to tell where it rests.
Asirvatham observes: "Some writers identify political sovereignty with the collective
community, some with the mass of the people, some with the general will, some with public
opinion, some with the physical power of that part of the people who can bring about a
successful revolution". It is difficult to locate political sovereignty. In representative
democracies it is said to reside in the electorate which can replace one legal sovereign by
another through periodic elections. In a direct democracy legal and political sovereignty are
almost coincident. In dictatorships political sovereignty resides in the revolutionary power of
the masses. The relation between legal and political sovereignty is very close, both being two
facets of state sovereignty. The problem of good government, as Gettell observes, is largely
one of the proper relationship between the legal and the ultimate political sovereignty. In a
healthy political system legal sovereign gives due respect and consideration to political
sovereign which acts as a bulwark against misuse of power. In case of conflict between the
two, the legal sovereign will override temporarily but in the long run the political sovereign
(the will of the people) will assert itself by means of a revolution, if necessary. The legal
sovereign should reflect and carry out the will of the people in the interest of good
government.
3. Popular Sovereignty: The idea of popular sovereignty originated with the antimonarchical writers of the sixteenth and seventeenth century. It means that people have
supreme power and ultimate authority rests with them. In the eighteenth century Rousseau
proclaimed the doctrine which became the driving force of the French Revolution. Jefferson
made it the basis of the American Declaration of Independence. The doctrine received further
impetus in the nineteenth century with the growth of democracy. It became a powerful
revolutionary idea which overturned monarchies in the European continent. It is, says Bryce,
the basis and watchword of democracy".4
The main difficulty with the doctrine is that it assumes the whole people as having one
unified will which Rousseau calls the "general will". But in a class-divided society, the
interests of various classes do not converge and what goes on for popular will is nothing other
than the will of the ruling class which exploits the rest. Again it is difficult to locate popular
sovereignty. The two possible meanings of the term "people" in defining popular sovereignty
4 Book Gauba O P, Ann introduction to political theory, 6 th edition, macmillan, 2014,187P

are: (a) "the total unorganised indeterminate mass", (b) the electorate. People, as understood,
in the first sense, cannot obviously be the sovereign. As regards the second, people may be
regarded as sovereign if they can act through legal channels. In actual practice, popular
sovereignty seems to mean nothing more than public opinion in times of peace and the might
of revolution in times of crisis and conflict.
4. National Sovereignty: The principle of national sovereignty was first formulated by the
French revolutionists in their Declaration of the Rights of Man. It means that sovereignty
resides essentially in the nation, conceived as a collective body of all the people enjoying
independence from external control. It is an affirmation of the principle that sovereignty is a
power of the nation personified and a denial of principle of individual sovereignty. The
concept is an abstraction since national sovereignty can be exercised by or manifested
through individuals and institutions.
5. Titular Sovereignty: The term is used with reference to a monarch who at one time was
actual sovereign, but has ceased to be such. As the constitutional or ceremonial head of the
state he is called a titular sovereign. The monarch of England is officially referred to as the
"sovereign" although his powers are only nominal. In practice the vast array of powers are
exercised by a different body of men, namely, the cabinet which acts on behalf of the titular
sovereign.5
6. De Jure Sovereignty: It has its foundation in law, not in physical power alone. It is the
sovereignty which according to legal right is entitled to the obedience of the people. The de
jure sovereign is competent to issue the highest command of the state. As a matter of fact it
may not be the actual sovereign, for it may be expelled or overthrown but it is lawfully
entitled to issue commands and exact obedience.6
7. De facto Sovereignty: It is the actual sovereign which exercises control over the people
and enjoys their real obedience to its commands. It is the "sovereignty which is actually able
to make its will prevail, though it may be without legal basis". As Bryce observes, "the
person or body of persons who can make his or their will prevail whether with the law or
against the law: he, or they, is the de facto ruler, the person to whom obedience is actually
5 Book Gauba O P, Ann introduction to political theory, 6 th edition, macmillan, 2014,186P

6 ibid
6

paid". De facto sovereignty rests on force, physical or spiritual. This sovereign may be an
usurping King, a dictator, a priest, a prophet or even a charismatic leader.
History is full of examples of de facto sovereignty. Oliver Cromwell became de facto
sovereign in England in 1649 after he dismissed the long Parliament. Napoleon Bonaparte
became the de facto sovereign of France after overthrowing Directory. Bolsheviks under
Lenin became the de facto sovereign in Russia after overthrowing Czardom. Communists in
China under Mao Tse Tung assumed de facto control in 1949 by dislodging the de jure
sovereign Chiang Kai-Shek. Many military dictators have assumed de facto control in third
world countries after overthrowing the duly elected de jure sovereigns through coups. Thus
political-upheavals or civil wars; in a country usually results in the displacement of the de
jure sovereign by the de facto sovereign.
A de facto sovereign in the long run attains legitimacy and becomes a de jure sovereign. It is
accorded international recognition by foreign states in course of time. Garner observes: "On
account of the manifest advantages which flow from the exercise of power resting on strict
legal right rather than upon mere physical force, the new sovereign sometimes has his de
facto claim converted into a legal right by election or ratification". The analytical school of
jurists object to the distinction between de jure and de facto sovereignty in as much as
sovereignty is essentially a legal concept and a de facto sovereignty, not based on law, cannot
be called sovereign as such. In Austin's opinion, it is plausible however, to use the terms de
jure and de facto in respect of government rather than of sovereignty. But the distinction
becomes relevant only in cases of revolution, civil war, coups etc., in a state because during
such crises two competing authorities stake their claims to sovereignty. '7

SECTION II:
2. SOVEREIGNTY AND PUBLIC AUHTORITY
On the international level, sovereignty means independence, i.e., non-interference by external
powers in the internal affairs of another state. International norms are based on the principle
of the sovereign equality of independent states; international law excludes interference and
establishes universally-accepted rules. Thus, sovereignty is eminently rational, if not
7 ibid
7

dialectical, since the sovereignty of a state depends not only on the autonomous will of its
sovereign, but also on its standing vis-a-vis other sovereign states. From this perspective, one
can say that the sovereignty of any single state is the logical consequence of the existence of
several sovereign states. It is thus a serious mistake to assume that sovereignty is possible
only within the framework of the classic type of state, i.e., a nation-state, as do
representatives of the realist school, such as Alan James and F. H. Hinsley, or neo-Marxist
theoreticians like Justin Rosenberg. One should not confuse the concepts of nation and state,
which do not necessarily belong together, or assume that the concept of sovereignty was
formulated clearly only in terms of the theory of the state. Closer to the truth is John
Hoffmans assertion that sovereignty has been an insoluble problem ever since it became
associated with the state. Even though a concept of sovereignty did not exist before the 16th
century, it does not follow that the phenomenon did not exist in political reality, and that it
could not have been conceptualized differently. For example, Aristotle does not mention
sovereignty, but the fact that he insists on the necessity for a supreme power shows that he
was familiar with the idea, since any supreme power kuphian aphen with the Greeks;
summum imperium with the Romans is sovereign by definition. Sovereignty is not related
to any particular form of government or to any particular political organization; on the
contrary, it is inherent in any form of political authority.8
The problem with sovereignty appeared at the end of the Middle Ages,
when the question posed was no longer only about the best form of government or the limits
of political authority, but about the relation between the government and the people, i.e., the
relation between ruler and ruled in a political community. This is the question that Jean Bodin
(1520-1596) attempted to answer in La Republique, published in 1576. Bodin did not invent
sovereignty, but he was the first to make a conceptual analysis of it and to propose a
systematic formulation. He did not initiate this project by observing a real state, but by
attempting to restore public order, which had been damaged by the religious wars, and by
legitimating the emancipation of French kings from the Pope and the emperor. This is why
Bodins doctrine naturally constituted the ideology of territorial realms seeking to gain
independence from the empire, and to transform the power that had obtained in royal
dominance over feudal lords. 9
8 thesovereigntysolution.blogspot.com/2011/04/what-is-sovereignty.html
9 archive.org/stream/WhatIsSovereignty/what_is_sovereignty_djvu.txt
8

SECTION III:
3.CHANGING CONCEPT OF SOVEREIGNTY:
The concept has evolved through different historical stepping and found mention in the
writings of different political philosophers. Classical writers such as Aristotle referred to the
"supreme power" of the state. The middle Ages knew little about the doctrine and practice of
concerted final authority. The political form, then, was feudalism, based on personal
independence and allegiance within small groups. Feudalism was the antithesis of unified
authority. There was open conflict between the spiritual and temporal authority and if
anybody under the circumstances, could claim, final authority, it was the church.
The common belief in the supremacy of the law of nature or of law of god over laws of the
political authority of the feudal society further hindered the rise of sovereignty. With the
onset of the Renaissance movement in the closing decades of the fifteenth century and the
beginning of the sixteenth century, supremacy of the state gained ascendancy over
ecclesiastical authority. The origin of the concept is closely linked with the rise of modern
notion of state. It is the result of the political movement of the emerging capitalist class
against the medieval feudal order, state power was decentralised. The rise of national feeling,
the development of trade and commerce, the recovery of the classical idea of sovereign states
of Rome, and the withdrawal of religion from the temporal sphere culminated in
Machiavellian nation state. C. D. Burns 'aptly observes that the word sovereignty may be
taken as symbolic of our political inheritance from the renaissance.
Although the term was never mentioned by him, Machiavelli implicitly developed the
doctrine of sovereignty in his famous work Prince. His conception of the state as a morally
isolated entity, as an organization of force and as a centralized authority contributed to the
conception of sovereignty. The reformation and the establishment of diverse religions in the
sixteenth century did indeed influence the establishment of diverse states. Laski writes: The
territorial and omnipotent state is the offspring of the religious struggles of the sixteenth
century For when Luther appealed against the divine Church, he was driven to assert the
divinity of states. The state became incarnate in the Prince. Thus sovereignty was conceived
as a personal attribute of the monarch. French philosopher Bodin developed the modern
concept of state sovereignty in his book, The Republic. He was making a plea for peace in an
age of war. He regarded it as a constituent element of the state but located the residence of
9

sovereignty in the monarch. Bodin did not carry his theory to its logical conclusion because
he admitted that there were some fundamental laws which the sovereign could not lawfully
abrogate; and that private property being granted by the law of nature and, therefore,
inviolable, the sovereign could not tax the subjects without their consent.
While Bodin analysed the internal aspect of sovereignty, Grotius, the Dutch jurist, developed
its external aspect. He propounded the theory of equality of the sovereign states and their
freedom from external control. English Political philosopher Hobbes in his Leviathan
established the modern concept of absolute legal sovereignty of the state by removing the
limitations suggested by Bodin. His view was later elaborated by Bentham and analytical
school of jurisprudence of which John Austin was the most important representative. Austin's
theory expounded in his "Lectures on Jurisprudence" is known as the monistic theory of
sovereignty. Idealistic philosophers like Rousseau, Hegel and Bosanquet analysed the concept
from a philosophic standpoint. Rousseau maintained that sovereignty belonged to the people;
it could be exercised only in an assembly of the whole people. Government was but the
executive agent of the general will; it had no pretensions to sovereignty. Rousseau's theory of
sovereignty was given its complete form by Hegel who made it more definitely philosophical
and metaphysical. He regarded the state as a "perfect rationality" the "Divine Idea' as it exists
on earth", Hegel completely identified the state with the whole society and asserted that only
in and through the state does the individual receive what makes life worth living, without it
he is nothing.
The legal or monistic theory of sovereignty has been assailed by the pluralists in the twentieth
century. They have challenged the omnipotence of the state on the ground that sovereignty,
far from being the monopoly of the state, is divisible and must be shared between the state
and a host of other associations which, in their genesis and functions, are as natural and
necessary as the state.10

SECTION IV:
4.

CONTEMPORARY CHALLENGES: Although many see threats to state

sovereignty from a wide variety of sources, many of these can be grouped in three broad
areas: the rise of human rights, economic globalization, and the growth of supranational
10 Book Gauba O P, Ann introduction to political theory, 6 th edition, macmillan,
2014,190P
10

institutions, the latter being partially driven by economic integration and the cause of human
rights.
The emergence of human rights as a subject of concern in international law effects
sovereignty because these agreed upon principles place clear limits on the authority of
governments to act within their borders. The growth of multinational corporations and the
free flow of capital have placed constraints on states' ability to direct economic development
and fashion social and economic policy. Finally, both to facilitate and to limit the more
troubling effects of these developments, along with a range of other purposes, supranational
organizations have emerged as a significant source of authority that, at least to some degree,
place limits on state sovereignty. It is too early to tell for certain, but recent US action in
Afghanistan and Iraq suggest that sovereignty will be further constrained in the fight against
transnational terrorism.

4.1 Globalisation as a challenge to sovereignty:


For many, economic globalization places significant limits on the behaviour of nation-states
at present. For those who see the retreat of the nation-state, the growing power of
unaccountable market forces and international organizations provokes calls for change. As
will be further elaborated below, the growth of multilateral institutions to manage the global
economy constrains state action. The increasing mobility of capital has led states to pursue
increasingly similar policies along the neo-liberal model. Given the intensification of global
competition, government spending and revenue-generation are increasingly constrained.
While some do not go so far as to declare the end of the welfare state, many see a worldwide
convergence toward a more limited welfare state. Others find that, while the tasks of the state
may be changing, the state very much remains the key driver of globalization processes. That
is not to say that all states have equal influence in the process. 11Nor can the outcomes be
reduced to strictly positive or negative because Globalisation in relation to national
sovereignty reflects a multidimensional concept.
The reach of the state has increased in some areas but contracted in others. Rulers have
recognized that their effective control can be enhanced by walking away from issues they
11 https://www.globalpolicy.org/component/content/article/172/30357.html
11

cannot resolve. For instance, beginning with the Peace of Westphalia, leaders chose to
surrender their control over religion because it proved too volatile. Keeping religion within
the scope of state authority undermined, rather than strengthened, political stability.
Monetary policy is an area where state control expanded and then ultimately contracted.
Before the 20th century, states had neither the administrative competence nor the inclination
to conduct independent monetary policies. With the exception of Great Britain, the major
European states have established a single monetary authority. Confronting recurrent
hyperinflation, Ecuador adopted the U.S. dollar as its currency in 2000.
Along with the erosion of national currencies, we now see the erosion of national citizenship
the notion that an individual should be a citizen of one and only one country, and that the
state has exclusive claims to that person's loyalty. For many states, there is no longer a sharp
distinction between citizens and noncitizens. Permanent residents, guest workers, refugees,
and undocumented immigrants are entitled to some bundle of rights even if they cannot vote.
Many software professionals migrated to USA and opted both for permanent residency status
and citizenship. Many Non-Resident Indians (NRI) claim for dual citizenship. The ease of
travel and the desire of many countries to attract either capital or skilled workers have
increased incentives to make citizenship a more flexible category. In such changed world
scenarios, the operation of states is more complex. Across recently collapsed or vanished
empires in Africa, the former USSR and Yugoslavia, we may observe the very worst aspects
of 19th century nationalistic chauvinism and intolerance.
There is a growing number of aspects of economic and cultural life e.g., the resurgence of
ethnic animosities among, for instance the Kurds, the non Muslims of the southern Sudan or
the Chinese in Tibet. In addition to economic interdependence (Trade, Finance and Direct
Investment) there are educational, technological, ideological, cultural, as well as
ecological, environmental, legal, military, strategic and political impulses that are influenced
in the context of globalisation. The integration of world economy and the migration of people
across national borders has impinges increasingly on national sovereignty. National
sovereignty is divided among a number of agencies such as national, regional, and
international. The development of international trade laws and the emergence of
supranational organisations have paved the way for erosion of national sovereignty. The sum
total of the various elements of globalisation has left the individual sovereign state less and
less focus on policy and control. Supranational organisations such as WTO, EU, NAFTA,
12

WB and IMF become more significant players in influencing the policy of nations and thus
attacking the national sovereignty. Globalisation, thus, placing State sovereignty under strain,
as international rules and institutions appear to become more instructive, transnational NGOs
more active and state control is less pronounced. State sovereignty as a normative concept
is increasingly challenged by the process of globalisation. The sanctioned use of legitimate
violence by the national sovereign power is now challenged and influenced by International
NGOs.
Privatization and liberalisation are the two watchwords for globalisation. The support for
privatization of services hitherto rendered by government has been gaining momentum in all
the developing nations. The success of privatisation of services in South Korea has led other
Asian nations to move towards limited government and liberalised economy. Liberalised
economy was introduced in India since 1991 and many of the public sectors were privatised.
The Indian government monopoly over certain productions and services were relaxed. The
spirit of free competition has led many MNC's to enter India and do business.12
The MNC's in turn influences the national and regional policies for their easy and successful
operation. The erosion of national sovereignty has been more pounced due to the privatisation
and the shedding of State obligatory functions worldwide in service provisions, distribution
and production. Corporate managers and non-citizens are the new policy makers in the
context of globalisation. The shrinking responsibilities of states and the expansion of private
sectors has led to de-bureaucratisation. Only regulatory functions are allocated to State. For
instance in India, since 1991 the license raj has been controlled.
The primary goal for globalisation is economic integration of the world and it therefore failed
in political and cultural integration. This resulted in cultural awakening of groups which
are against universal culture (American-Western culture). As opined by Samuel. P.
Huntington, the process of globalisation has initiated the clash of civilisations. He adds that
civilisation fault lines may lead to civilisation conflicts. There is no meaning for national
sovereignty in conflict resolutions based on civilization conflicts. In such situation national
boundaries will be redrawn and national sovereignty may be redefined.

12 http://www.webzeest.com/article/2136/challenges-to-state-sovereignty
13

Many social scientists believe that globalisation erodes national sovereignty in terms of:
a) Forces of fundamentalism
b) Neo- colonialism
c) Civilizational conflicts
d) New politics

4.2

RISE

OF HUMAN RIGHTS AS CHALLENGE TO SOVEREIGNTY: State

sovereignty implies a states ability to govern its own internal affairs without outside
interference, while protecting its claim to equality in the society of states. Enshrined in Art 2
of the UN Charter, sovereignty provides the basis and remains at the heart of all state
interaction in the modern world. The presumption is that no authority may exist above the
state without its specific consent. Consequently, the nature of international law is very
different to domestic legal structures, with states being the main subjects as well as the main
agents; they formulate, enact and enforce the law that applies to them.
Considering how this impacts international human rights, sovereignty does not always
become an issue. If human rights abuses occur within a particular state that is governed by
laws that protect human rights, the victims are given recourse through domestic institutions.
The problem arises when domestic structures fail to uphold human rights either because they
are unable or unwilling to act. It is in these cases that IR scholars recognise an inherent
tension between state sovereignty and the protection of human rights.
At this point the following questions should be raised, which are twofold. On the one hand,
the existence of state sovereignty does not seem to have stemmed the tide of international
human rights legislation, most notably the Universal Declaration of Human Rights and the
two Covenants on Civil and Political, and Economic, Social and Cultural rights. It seems that
many states have shown a surprising willingness to commit to these treaties, which begs the
question as to why, given the impact this might have on their sovereignty. Is there an inherent
sense of wanting to learn from the past, recognising a need to cooperate or is the implication
on a state that reneges on its commitments inconsequential as insufficient mechanisms are in
place to enforce compliance?13

13 http://www.ihre.org/academics/documents/StateSovereigntyandHumanRights.pdf
14

On the other hand, what to do with states that refuse to accede to any of these treaties in the
first place. Can an argument be made that certain human rights fall within the domain of
international customary law, thereby applicable to all? Are there instances when the
international community has an obligation to intervene and if yes, how? Alternatively, is the
recent creation of the International Criminal Court able to circumvent the issue of sovereignty
by targeting the individual abusers, this despite severe criticisms for overreaching its
boundaries?
Some IR scholars support the premise that in the past 60 years a gradual reduction of state
sovereignty has been occurring, often believed to be linked to the rise of human rights
awareness and the need to protect people from abuse by the state. The debate centres on the
question as to whether other actors such as individuals or groups of people, not just states as
seen traditionally, are receiving recognition as subjects in international law and are therefore
awarded protection. In an attempt to analyse this question it would be interesting to ask
whether the nature of international law has shifted from dealing with order to dealing with
justice, which ultimately means that having solely dealt with the relationship between states
and their will in the past, it is now attempting to introduce a system of global governance.14
The United Nations Charter contains a contradiction that has become ever more troublesome
particularly after the end of the Cold War. On the one hand, the Charter contains clear defence
of the territorial integrity of states, a reaction to Nazi aggression during World War II. At the
same time, it also contains commitments to individual human rights and the rights of groups
to self-determination. Conventions on genocide, torture, and the like restricted state
behaviour within its own borders. Regional organizations were articulating human rights
principles as well. The growth of human rights law limits sovereignty by providing
individuals rights vis-B-vis the state. However, in the context of the Cold War, US-Soviet
rivalry paralyzed the Security Council and it rarely acted in defence of these principles.15
At the same time, non-governmental organizations (NGOs) emerged in the 1960s-70s
fighting for the cause of human rights. To some extent Transnational nongovernmental
organizations (NGOs) have been around for quite awhile, especially if you include
corporations. In the 18th century, the East India Company possessed political power (and
14 ibid
15 http://www.beyondintractability.org/essay/sovereignty
15

even an expeditionary military force) that rivalled many national governments. Throughout
the 19th century, there were transnational movements to abolish slavery, promote the rights of
women, and improve conditions for workers.
The number of transnational NGOs, however, has grown tremendously, from around 200 in
1909 to over 17,000 today. The availability of inexpensive and very fast communications
technology has made it easier for such groups to organize and make an impact on public
policy and international law the international agreement banning land mines being a recent
case in point. Such groups prompt questions about sovereignty because they appear to
threaten the integrity of domestic decision making. Activists who lose on their home territory
can pressure foreign governments, which may in turn influence decision makers in the
activists' own nation.
But for all of the talk of growing NGO influence, their power to affect a country's domestic
affairs has been limited when compared to governments, international organizations, and
multinational corporations. The United Fruit Company had more influence in Central
America in the early part of the 20th century than any NGO could hope to have anywhere in
the contemporary world. The International Monetary Fund and other multilateral financial
institutions now routinely negotiate conditionality agreements that involve not only specific
economic targets but also domestic institutional changes, such as pledges to crack down on
corruption and break up cartels.
Smaller, weaker states are the most frequent targets of external efforts to alter domestic
institutions, but more powerful states are not immune. The openness of the U.S. political
system means that not only NGOs, but also foreign governments, can play some role in
political decisions. (The Mexican government, for instance, lobbied heavily for the passage
of the North American Free Trade Agreement.) In fact, the permeability of the American
polity makes the United States a less threatening partner; nations are more willing to sign on
to U.S.-sponsored international arrangements because they have some confidence that they
can play a role in U.S. decision making.16
Groups such as Amnesty and Human Rights Watch serve as watchdogs to publicize the
human rights record of governments limiting state action in some ways. The publicity is
sometimes enough to alter state behaviour. At other times, the information serves to prompt
16 https://www.globalpolicy.org/component/content/article/172/30357.html
16

other states to apply diplomatic pressure, economic sanctions, and increasingly common to
contemplate humanitarian intervention.
In the 1990s, the Security Council began to reinterpret the Charter to more frequently favor
human rights over the protection of state sovereignty. Through a series of resolutions, the
United Nations has justified intervention in the internal affairs of states without their
acquiescence. In cases such as Somalia, Bosnia, and Kosovo, the Security Council has
gradually expanded the definition of international threats to peace and security to justify
intervention in circumstances that would have been inconceivable in the past. At the same
time, as these cases and Rwanda show, states are often only willing to risk their troops when
there is some national interest at stake. There is also great reluctance to interpret any of these
instances as precedent-setting as states fear they may be the target of intervention in the
future.17

4.3 Supranational organisations as a challenge to state sovereignty: Given the


emergence of a whole range of transborder issues from economic globalization to the
environment to terrorism, one of the key discussions surrounds whether the nation-state is
obsolete as the best form of political organization to deal with these problems. Economic and
social processes increasingly fail to conform to nation-state borders, making it increasingly
difficult for states to control their territory, a central component of sovereignty. This raises
important questions about the proper site of political authority. As governance structures are
established at the global level to deal with the growing number of global problems, debate
has ensued as to how to make these arrangements accountable and democratic.
Many organizations are state-based, such as the United Nations, the World Trade
Organization, or the European Union. Therefore, in principle, states are firmly in control and
any ceding of sovereign authority is in their interest to do so. However, bureaucracies, once
established, often seek to carve out additional authority for themselves. States also may find
functional benefit in ceding authority to supranational organizations.
What is more, a whole range of private organizations have emerged to infringe on sovereign
authority as well. In addition to human rights NGOs discussed above, global civil
society organizations have emerged around numerous issues. Civil society groups have had a
growing, yet uneven, effect on nation-states and international organizations. In addition, as
17http://www.beyondintractability.org/essay/sovereignty
17

economic interdependence grows, private governance arrangements, such as the Bank for
International Settlements, are also becoming more prevalent. Private security organizations
even conduct war on behalf of states, whether as mercenaries in western African civil wars or
as contractors to the US military around the world.18 Taking an another case:
The European Union Is a New Model for Supranational Governance
Yes, but only for the Europeans. The European Union (EU) really is a new thing, far more
interesting in terms of sovereignty than Hong Kong. It is not a conventional international
organization because its member states are now so intimately linked with one another that
withdrawal is not a viable option. It is not likely to become a "United States of Europe a large
federal state that might look something like the United States of America because the
interests, cultures, economies, and domestic institutional arrangements of its members are too
diverse. Widening the EU to include the former communist states of Central Europe would
further complicate any efforts to move toward a political organization that looks like a
conventional sovereign state.
The EU is inconsistent with conventional sovereignty rules. Its member states have created
supranational institutions (the European Court of Justice, the European Commission, and the
Council of Ministers) that can make decisions opposed by some member states. The rulings
of the court have direct effect and supremacy within national judicial systems, even though
these doctrines were never explicitly endorsed in any treaty. The European Monetary Union
created a central bank that now controls monetary affairs for three of the union's four largest
states. The Single European Act and the Maastricht Treaty provide for majority or qualified
majority, but not unanimous, voting in some issue areas. In one sense, the European Union is
a product of state sovereignty because it has been created through voluntary agreements
among its member states. But, in another sense, it fundamentally contradicts conventional
understandings of sovereignty because these same agreements have undermined the juridical
autonomy of its individual members.19
The European Union, however, is not a model that other parts of the world can imitate. The
initial moves toward integration could not have taken place without the political and
18ibid
19 https://www.globalpolicy.org/component/content/article/172/30357.html
18

economic support of the United States, which was, in the early years of the Cold War, much
more interested in creating a strong alliance that could effectively oppose the Soviet Union
than it was in any potential European challenge to U.S. leadership. Germany, one of the
largest states in the European Union, has been the most consistent supporter of an
institutional structure that would limit Berlin's own freedom of action, a reflection of the
lessons of two devastating wars and the attractiveness of a European identity for a country
still grappling with the sins of the Nazi era. It is hard to imagine that other regional powers
such as China, Japan, or Brazil, much less the United States, would have any interest in tying
their own hands in similar ways. (Regional trading agreements such as Mercosur and NAFTA
have very limited supranational provisions and show few signs of evolving into broader
monetary or political unions.) The EU is a new and unique institutional structure, but it will
coexist with, not displace, the sovereign-state model.20

SECTION V:
CONCLUDING OBSERVATION:
The old map of states is being shaken by the roots- some states have fallen to pieces, some
have formed massive trading alliances, most in the west seem to be yielding sovereignty to
20 ibid
19

the world of globalization and market forces, and all are yielding large areas of social and
economic responsibility to the private and not for-profit sectors. Much, maybe most, of this
change is incremental rather than in the pursuit of any new mode of the state or society.
Boundaries are becoming porous in terms of information and money flows-and fund
transfers, have reached the astounding figure. At the same time across recently collapsed or
vanished empires in Africa, the former USSR and Yugoslavia, we may observe the very worst
aspects of 19th century nationalistic chauvinism and intolerance, the resurgence of ethnic
animosities among, for instance the Kurds, the non Muslims of the southern Sudan or the
Chinese in Tibet. The disappearance of the cold war has left the non viable shells of
collapsing states such as Cuba, parts of Central America etc. New organizations, such as the
WTO lurk in the wings with enormous capacity to pull the rug out from many small states in
alliances with bigger neighbours, from poor regions within developed democracies, and from
substantial areas of domestic economic and social policy that were never seen as having
much to do with trade
From above examples we can see that the above discussed factors do not always challenge
state sovereignty but in fact sometimes strengthen the ability of states to respond to domestic
aspirations.
In short the world is changing so fast and so profoundly where we can see diminishing face
of sovereignty started and its position is worsening. Some states get stronger and some get
weaker due to challenges faced by states. Yet sovereignty persists.
Sovereignty is the great survivor among modern political concepts. Its death and the retreat
of the state and the society of states that it supports- have often been foretold. Yet they persist.
James Mayall
(Centre of international studies,
Cambridge)

REFERENCES:

BIBLIOGRAPHY:
20

Robert Jackson, Sovereignty- the evolution of idea (Cambridge: polity press)


Millennium
Book Gauba O P, Ann introduction to political theory, 6th edition, Macmillan, 2014

WEBLIOGRAPHY:
thesovereigntysolution.blogspot.com/2011/04/what-is-sovereignty.html
https://www.globalpolicy.org/component/content/article/172/30357.html
archive.org/stream/WhatIsSovereignty/what_is_sovereignty_djvu.txt
http://www.webzeest.com/article/2136/challenges-to-state-sovereignty
http://www.ihre.org/academics/documents/StateSovereigntyandHumanRights.pdf
http://www.beyondintractability.org/essay/sovereignty

21