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April 3, 2004

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Legal meaning of sovereignty

Barrister Harun ur Rashid

We always use the term "sovereignty" of a state. What do we actually mean by that expression? The word "sovereign", according to its dictionary meaning, is " a person exercising supreme authority". Accordingly, "sovereignty" of a state means its unrestricted power within the territory both internally and externally. In other words the powers of a state are not controlled by any other state or entity.

Definition of sovereignty
French Philosopher Jean Bodin (1530-1596) attempted to define sovereignty by describing it as absolute and perpetual power of a State. International Law author Brierly in his book "Law of Nations" defined it as " absolute and illimitable". All these definitions mean that a state has the full capacity to govern a territory with complete freedom including its competence to establish relations with other States.

In the Wimbledon Case (1923), the Permanent Court of International Justice considered that one of the ingredients of sovereignty was to right and competence to enter into international agreements with other entities. Judge Huber in the Island of Palmas Case (1928) noted that "sovereignty in relation to a portion of the surface of the globe is the legal condition necessary for the inclusion of such portion of territory of any particular case".

The Treaty of Westphalia of 1648 gave approval of nation-states with centralised national governments and under the Treaty, the defining characteristic of sovereignty has always been the state's capacity to make authoritative decisions regarding the people and resources within the territory. This system began in Europe and it was taken up around the world and it lasted until the UN was set up in 1945.

Test of existence of sovereignty
Mere declaring a state within a territory does not confer sovereignty. It has to be seen whether that state has the unfettered power to exercise its authority not only in domestic affairs but also in foreign affairs. For example, a new state "Manchukuo" was declared after Japan occupied a province in China in 1931. Although Japan immediately recognised it , international community found that the authority of "Manchukuo" was controlled by Japan. The League of Nations, the predecessor of the UN, constituted a Commission to find out facts of the nature of authority of the new state to determine the existence of sovereignty.

The Commission led by Lytton came to the following view: " In the government of "Manchukuo", Japanese officials are prominent and Japanese advisers are attached to all important departments. Although the Premier and his Ministers are all Chinese, the heads of the various Boards of General Affairs, which is an organisation of the new state

vested with the greatest measure of actual power, are all Japanese". This implied that the new state "Manchukuo" was virtually under Japan and could not exercise freely its power. It meant that "Manchukuo" lacked sovereignty.

At the birth of sovereign Bangladesh on December 16, 1971, it was widely reported that there was a proposal from India to appoint Indian advisers to all departments and ministries in Bangladesh government. The India's proposal possibly originated from a concern that the administrative machinery of the new government of Bangladesh might not be able to handle the gigantic task of rehabilitation and reconstruction of the war-ravaged country.

However, Bangladesh government rejected the proposal on the ground that the acceptance of such proposal might give impression to other states that Bangladesh was not a sovereign entity but a "satellite of India". Furthermore, Bangladesh government had an abundant supply of good, efficient and experienced Bangladeshi officers who had sound academic records both from local and foreign universities. They were as good as Indian advisers, if not in some cases better in quality than Indian advisers.

Is power under sovereignty unlimited?
The simple answer is in the negative because at present sovereignty is restricted by the rules of international law. Under international law, it is commonly acknowledged that sovereignty implies dual responsibility: externally, to respect the sovereignty of other states, and internally, to respect the dignity of all the people within the state.

The concept of sovereignty under the Westphalian system has undergone a change. At the heart of this conceptual approach is a shift in thinking about the essence of sovereignty, from control to responsibility of states. Even the strongest supporters of state sovereignty will admit today that no state holds unlimited power to do what it wants to do within its territory.

States exist and interact with other states and international organisations. They enter into treaties and agreements with other entities and are bound by them. This means that States themselves surrender some portion of their sovereignty by agreeing to be bound by the provisions of a Treaty/Agreement. If they are in beach of the provisions, other states may not cooperate and may impose boycott or sanctions on the recalcitrant state.

The global environment is a complex and multi-faceted one. There are many global and regional issues that cannot be handled by one state. For example, issues, such as international disorder, global terrorism, flow of refugees, fluctuations of global economy, security of food, export of man-power, elimination of poverty, environmental degradation, prevention of floods and drought, trafficking of women and children, smuggling of drugs, prevention and control of deadly diseases need active cooperation and support of other states and international organisations. The cooperation and assistance may only come if a state conduct itself within the confines of international or regional system, governed by rules of law.

Another matter that merits attention is that fundamental human rights cannot be denied by states to their own nationals. The 1948 UN Universal Declaration of Human Rights has become a part of customary international law. It has been seen that respect for human rights is now a subject of international concern. No longer a state can legitimately argue that violation of human rights within its territory is simply a matter of domestic jurisdiction or an internal matter. This is because individuals are no more "objects" of international law but are considered as "subjects" of international law. Individuals can now lodge a complaint against their own states to the UN Commission of Human Rights.

There are circumstances when the UN or any regional organisation such as NATO may intervene if a state grossly violates fundamental human rights or commits genocide or crimes against humanity. For example the US-led armed forces attacked former Yugoslavia in 1998 to prevent genocide and "ethnic cleansing" of Albanians in Kosovo by Serbian authorities under former President Slobodan Milosevic. Such intervention is known as humanitarian intervention. It means that the international community will no longer ready to permit gross abuse of human rights in a state. It has become now an international responsibility to ensure that genocide or gross violations of basic human rights do not take place anywhere in the world.

Sovereignty is now understood as embracing responsibility and not control and unfettered power. Sovereignty as responsibility has become the minimum content of good international citizenship. Under emerging international law, sovereignty is no more the exercise of unlimited power over its citizens and resources but is limited to state's actions consistent with the principles and purposes of the UN Charter (Articles 1 and 2 of the Charter).

Barrister Harun ur Rashid is former Bangladesh Ambassador to the UN, Geneva.


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