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Sovereignty And The International Order

Sovereignty is ambiguously defined in the Charter of the United Nations. The first principle holds that the charter derives its legitimacy from the people of the earth-space community, but the constitutional scheme is weighted heavily in favor of the state-sovereignty paradigm, and limits, in some significant measure, the role of nongovernmental participation. Membership is open to sovereign states only. However, the basis of sovereignty is further clarified in the International Covenant on Civil and Political Rights. Individuals who constitute the "people" according to Article 16 "shall have the right to recognition everywhere as a person before the law." Article 18 specifies the people's right to freedom of thought; Article 19 stresses the people's "right to hold opinions without interference" and that the people "shall have the freedom of expression;" and Article 25 puts stress on the right to participate in the political welfare of the State, and the universal rights to vote and to participate in public service.

Thus, a significant change created by the UN Charter (along with subsequent practice) is that the conceptual basis of sovereignty is rooted not only in the monopoly of effective power, but also is predicated on authority and legitimacy, which are rooted in the expectations of people. The Declaration on the "Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union" made recognition and sovereign acceptance into the European community of states, subject to strong normative standards of international justice. The Guidelines include "respect for the provisions of the Charter of the UN and the commitments subscribed to in the Final Act of Helsinki and in the Charter of Paris, especially with regard to the rule of law, democracy and human rights." The Summit of the Americas Declaration of Principles and Plan of Action articulated that democracy is the sole political system that guarantees respect for human rights and the rule of law. The 1990 Charter of Paris is another important expectation-creating instrument wherein sovereignty is predicated in the will of the people. Participating states affirmed their respect for human rights protections and fundamental freedoms as "essential safeguards against an over-mighty State." Democracy is "based on the will of the people" and is the "foundation of human respect" (pp. 193–194).

These examples illustrate that fundamental expectations of the nature of the state, including its sovereignty and governance, are being conditioned by what scholars call a right to democratic governance. The idea is that the formal historic requirements for the de facto recognition of a state have been enhanced by the normative constraints and demands of critical symbols of authority associated or identified with the human right to democratic governance. These demands include transparency, responsibility, accountability, and a commitment that the rule of law must be an intrinsic component of the nature, scope, and practical functions of sovereignty.

The newer meaning of sovereignty, which ties control to authority and to decision-making, also raises the question about how power and authority (i.e., governance) and decision-making are constituted in the global environment. For example, there are nation-states with constitutions in Africa. There is also the Constitution of the African Union, which is a form of constitutionalism with linkages to the constitutions of African member states. In Europe, nation-states are tied together in an economic and political union. Each nation-state has its own constitution, which is an overt indicator of how governance is constituted in the state, but the continental linkages of these states are to a larger political and economic community, and a draft constitution has been formulated that will obviously have linkages to the constitutional scheme within each state.

At a more inclusive level, all of these developments (national and continental) have evolved complex constitutional orders, which fall under the umbrella of the global constitution: the Charter of the United Nations. It will be very obvious that sovereignty now involves complex clusters of competence; some competences are shared, and smaller states (pooling their economic and political capital) might now have a larger say in the important decisions affecting them in the larger international environment than would be the case if they were acting as individual, isolated sovereigns. However, collected powers also require submission to the rules of the game. In short, in the early twentieth century, sovereignty can be described as a strengthened expression of its former self to some degree, but it is nevertheless much changed.

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