A Grotian Moment: Part 2

Photo credit: AK
Photo credit: AK

Sovereignty and intervention

The contours of state sovereignty have shifted over the years. Today it is an accepted fact that some states are more sovereign than others. Due to their powerful economic and military status, they have more power on the international scene; thus, their opinion matters more and their actions are examined through lesser scrutiny. 

The state sovereignty is the superiority of state power in the internal affairs of the state and its independence in the foreign relations, which means the totality of legislative, executive and juristic bodies in the whole territory of state. This also includes, when state doesn’t undergone foreign states, except the cases when the state voluntary agrees to have limitations on its sovereignty. Sovereignty is one of the inalienable properties of state, thus principally it is always total and exclusive. Now days, the state’s sovereignty is not considered as unlimited and absolute, it is examined with some popular principles of international rights, from the view of certain relations. Especially, in the inner relations the state’s sovereignty should not have an impact on the human’s and citizen’s rights, in the foreign relations, however,  the sovereignty is limited by many principles of international rights, such as the principle of not unleashing the war, the responsibilities while joining with the international or regional organizations, etc. In democratic society the states sovereignty emanates from the nation’s sovereignty.

The idea of intervention is not entirely novel. The United Nations Charter provides all states with the right to cross the frontiers of another state in a military fashion, in the name of self-defense or when authorized by the Security Council.  Moreover, states are allowed to intervene within the territory of another state in the form of collective self-defense. The idea of intervention outside of the confines of the Charter’s structure is more controversial. Over the last few decades, several new paradigms of intervention have evolved. One emerging theory of intervention is coupled with the rise of the human rights movement: the idea that states may intervene in the affairs of other states in the name of human rights protections. Several of these interventions have taken place in the late 20th century. For example, an intervention on behalf of the Kurds in Iraq was staged in the early 1990’s, when several countries launched an attack on Iraq to protect its ethnic Kurds. Similarly, a NATO-led intervention took place in Kosovo, to protect ethnic Kosovo Albanians. Many scholars have supported the idea of humanitarian intervention, and most would agree that it has acquired the status of an emerging customary norm. Additionally, some have advocated other forms of intervention. Richard Haass, a senior member of the George H.W. Bush administration, advocated the idea of the so-called involuntary sovereignty waiver. According to this theory, states waive their sovereignty in an involuntary manner, thereby inviting intervention by external actors, if they engage in three different types of reprehensible behavior. These three behaviors justifying a waiver of sovereignty on behalf of the offending state include harboring terrorism, hiding weapons of mass destruction, and abusing human rights. The third reason for waived sovereignty, the abuse of human rights, fits within the already existing paradigm of humanitarian intervention.

The involuntary sovereignty waiver theory represents a significant change in the traditional perception of state sovereignty and equality. Haass recognizes the fact that some states are more sovereign than others, but simply sees nothing wrong with it.

Referring to Haass, of course, he would have hardly seen anything wrong with this. But, wouldn’t these all, not interfering human rights, liberal values, and other state’s inner actions, mean to have false appearance, with an attractive content. People feel the injustice, but finding no explanation for this, they try to find everything within the framework of the process. And, people instead of finding a system for human; they find a system against human.

No matter, how Haass’s theory is accepted in the international relations, it is presented as a real ‘’Grotian Moment’’. Through this theory, state equality and sovereignty may have been replaced by a system of unequal power and a rule of the Great Powers. While the Great Powers have always had more clout on the world scene de facto, the Grotian Moment arising from Haass’ theory is in the fact that this theory legitimizes the Great Powers rule, turning it into a serious international relations theory. Here, of course, Haass is not mistaken, or he doesn’t invent anything, because the actions of the Great powers, including their illegal actions, are always being legitimized, as they are the ones, who dictate the rules of the game and behavior.

The legal theory of statehood has changed, and notions of state sovereignty and intervention on our globalized planet are vastly different today. Statehood no longer implies that states may engage in any kind of behavior within their border without repercussions. On the contrary, it seems that certain kinds of offensive behaviors produce direct sanctions by other states.

Globalization or State Inter-Connectivity

Now days, the processes going on around the world have an impact not only on the economy, but also on politics, cultural and spiritual aspects. A new global world-system has been created, the index of which is the globalization. This means that social, political, economic, cultural and other links and relations are attaining global nature. Globalization, a phenomenon which can be described as inter-connectivity between regions, peoples, ethnic, social, cultural, and commercial interests across the globe, has affected different legal fields, one of which is international law. Thus, international law has undergone an evolutionary process over the recent decades, transforming itself from an interstate conflict resolution instrument, to a powerful global tool, present in every-day life and influential of many state actors’ and non-state entities’ decisions and policies. Because international law has expanded its role in such a drastic way, it has thereby eroded traditional state sovereignty. It is no longer true that states may do whatever they wish within their territory; rather, what states do internally often has an impact on other states, and often results in reactionary responses by other states. “Grotian Moment’’ is a result of globalization, and affects the fourth criterion of the legal theory of statehood, the capacity to enter into international relations. In fact, these states are expected to engage in international relations, they are also required to behave in a certain way, in order to avoid sanctions, global ostracism or other forms of intervention.

 ‘’Grotian Moment’’.  A new Theory of statehood

The four traditional criteria of statehood no longer suffice to prove that an entity ought to be treated as a state under modem-day international law. In a Grotian Moment – an accelerated formation of new customary legal norms in times of fundamental change – the requirements of statehood have evolved. So, any statehood-seeking entity must garner the support of the Great Powers. The Great Powers’ decision to recognize, or not recognize a particular new entity as a state, directly influences that entity’s ability to become a true sovereign state partner.

This conclusion follows from the current Great Powers’ rule – a concentrated amount of power in the hands of several powerful states that, unfortunately, dominate global relations. For example, Kosovo garnered the Great Powers’ support in its struggle for statehood, and it relatively easily managed to assert independence from Serbia. On the contrary, entities such as Tibet, Taiwan, Northern Cyprus, South Ossetia, and Artsakh have not been able to persuade the Great Powers of the need to grant them the badge of statehood; thus, they have lacked entry into the global relations scene.

Second, any statehood-seeking entity must demonstrate that it will respect human including minority rights. On the contrary, if these entities choose to abuse human rights, they are close to risking the lost of its state territorial integrity. When the former USSR and the former Yugoslavia collapsed in the early 1990’s, European Union countries refused to recognize any new country in Europe unless it specifically committed to respecting human rights. This is a perfect chance for powerful states to interfere in the works of sovereign states, on behalf of the human rights.

Third, any statehood-seeking entity must show its willingness to participate in international organizations and to follow to the established rules. Because of the proliferation of international organizations and legal norms, which now exist in virtually every aspect of state life, it is impossible for any state-like entity to function while ignoring international organizations.

The fourth criterion of statehood, the capacity to enter into international relations, has become the crucial component of any entity’s statehood quest. Thus, the theory of statehood should be amended, to capture this ‘’Grotian Moment’’, to include these new requirements, and to ensure that the statehood label is more accurately bestowed on applying entities.

Analyzing the present geopolitical events all over again, it becomes obvious, that these four criteria have an attacked status. This is more obvious, when we discuss the example of Islamic State of Iraq and the Levant (ISIL). Being non recognized state in the international relations, ‘’this republic’’ with its extended territory and structure can be regarded better state, than today’s many other states. This doesn’t even take any steps to be recognized in the international relations. And saying, that this non state entity is embarrassed due to international law and norms of behavior, or moreover has limited abilities in international process, is absolutely undue and anachronistically.

Conclusion

The law is not only an important international life regulator, but also is an argument in the aspect of controversy. Moreover, in the field of politics, it becomes an argument. It often has two meanings, and the principles of it, as a rule is done by choice (for example Kosovo’s and Artsakh’s situation of ‘’political fates’’).  From a simple set of tools governing inter-state relations, international law has transformed itself into a global net of norms, rules and regulations, governing most aspects of state existence. Globalization has profoundly impacted state behavior, and even though statehood has lost some features of its sovereignty, it is still considered as the most important legal theory of statehood.

The world is transforming, it does not get better or worse. It just becomes something else. The metamorphose going on in the world require changes in the aspect of legal norms, which will regulate the new phenomena and processes. It is important for these norms not to ignore the greatest value: human with his rights and freedoms.

Bibliography

  1. Anne-Marie Slaughter & William Burke-White, An International Constitutional Moment, 43 Harv. Int’l L. J. 1, 2 (2002).
  2. Milena Sterio, The Kosovo Declaration of Independence: Botching the Balkans or Respecting International Law?, 37 Georgia J. Int’l & Comp. L. (2009).
  3. Milena Sterio, The Evolution of International Law, 31 Boston College Int. & Comp. L. Rev. (2008).
  4. Milena Sterio, AGrotian Moment: Changes in the Legal Theory of Statehood. Research Paper 10-200. Cleveland State University.(October 2010).
  5. Michael J. Kelly, Pulling at the Threads of Westphalia: “Involuntary Sovereignty Waiver”? Revolutionary International Legal Theory or Return to Rule by the Great Powers?, 10 Ucla J. Int’l. & For. Aff. (2005).
  6. Michael P. Scharf, Seizing the “GrotianMoment”Accelerated Formation of Customary International Law In time of Fundamental Change, 43 Cornell Int. L. J. 1(2010).
  7. Grotian Moments and Accelerated Formation of Customary International Law, https://www.youtube.com/watch?v=Cg-KqXovOF0
  8. N. Charter, http://www.un.org/en/sections/un-charter/chapter-vii/index.html
  9. http://www.state.gov/

Author: Anna Khachyan: © All rights are reserved

Translated by Ashkhen Arakelyan


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Grotian Moment: Part 1

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