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Law

Problems Of Sovereignty

The model for expanding the community of nation-states became the model of a sovereignty-dominated world order, which included the new Afro-Asian sovereigns. This model was largely Eurocentric, and its juridical roots are often identified with the Peace of Westphalia (1648). The claims about sovereignty now represented a paradox. Colonial sovereignty was to be seen as weaker and permeable: "soft sovereignty," as it were. However, the new sovereigns were based on political foundations that were both internally and externally vulnerable. The same elites who demanded a weak version of sovereignty to justify decolonization were now demanding something akin to an absolutist version for national survival. In short, they were frequently demanding a form of sovereignty identified with the international legal culture prior to World War II, a version largely unconstrained by respect for international obligations (hard or thick sovereignty).

The problems of weakening sovereigns coincided with the Cold War, and the hegemons could find surrogates to spear-head strategic interventions intended to weaken sovereigns ostensibly identified with one superpower or another. The normative status of sovereignty thus generated two powerful contradictory trends. The first trend was the high priority given to principles of sovereign equality and nonintervention. The second was the high priority given to the imperatives of international legal obligation and the competence to intervene when fundamental international values, such as peace, security, and humanitarian values, are compromised.

Thus, while the nation-state system was still expanding in the early 2000s—with approximately 192 sovereigns—sovereignty, in fact, was changing, as nations found that in giving up some sovereignty, they, in effect, strengthen their sovereignty. The expansion of NATO (North Atlantic Treaty Organization) is an illustration of this phenomenon; the development in the direction of the European Constitution is a further example; and the development of the African Union Constitution is a major doctrinal shift in the dynamic of sovereignty. This suggests that the political and juridical conceptions of sovereignty had the possibility of embracing theoretical reification and practical obsolescence, or becoming more refined, flexible, fluid, and relevant to the practicalities of governance.

The importance of understanding the context in which sovereigns are created, maintained, and possibly changed is a reflection of the insistence in legal theory that international sovereignty itself is the outcome of problems of power in the international system. What is apparent in the complex global network of institutions and participant actors is that there are many active participants in this process, such as international, continental, and regional organizations, and private-sector institutions of business, capital, and labor, as well as the vast organization and partial structure of nongovernmental operators and individuals who constitute national and global civil society. Therefore, it will be seen that the meaning of sovereignty itself derives not so much from state absolutism, but from the ways in which global society constructs and orders political identity and participation through sovereigns and other institutions of global salience.

Statehood.

The concept of sovereignty in the twenty-first century is, of course, tied to the concept of statehood. For a state to be recognized in international law, the state must meet certain practical and normative requirements. The first set of criteria relates to practical matters of power and control. The state must have control over territory, people, and institutions of governance, and must be competent to handle the international environment.

These matters are often collapsed into what is sometimes known as the declaratory theory of recognition. In order to become a member of the United Nations, a state must not only meet these criteria, but it must also meet certain normative standards. It must indicate a willingness to respect and honor the principles on which the United Nations is founded, including respect for peace and security, the rule of law, human rights, and more. In practice, governments have—from time to time—unilaterally indicated that certain states do not maintain standards of behavior consistent with the concept of international obligation. Thus, the United States has a list of states it regards as "terrorist," and has expanded this notion to include what it calls "rogue states." This indicates the beginning of a discourse that is more substantive with regard to the nature of the state itself and therefore the nature of sovereignty. Thus, the notion emerges of the abuse of sovereignty, and some writers have suggested that descriptive typologies of states could include such descriptions as failed states, anarchic states, genocidal states, homicidal states, rogue states, drug-influenced states, organized-crime-influenced states, kleptocratic states, terrorist states, authoritarian states, garrison or national security states, totalitarian states, and democratic rule of law states. Behind this discourse is the evolving notion of sovereignty itself. The older idea of sovereignty was identified with state absolutism. Among the elements of the new concept are the ideas and ideals of transparency, responsibility, and accountability in the analysis of both sovereignty and the state.

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