The Myth of Sovereignty
By: Gerald F. Witherspoon, Sr. 20151209
The norms of international law imply a quasi-agreed-upon formula whereby members throughout the international community may agree as to who, what, when, where, and why a transgression has occurred. Additionally, these norms offer a foundation for international efforts toward preventive diplomacy and jurisdictional authority-the right to prosecute from or within a given territory. Inadvertently, these same norms offer students of international relations a research paradigm whereby they can extract the reality of political influence on the decision-making process and the associated impacts on security agreements. More importantly, those heading the table of international law, shape the norms to be followed by others seated with mere hope for protection against unjust impositions, as they hide behind the mythical notions of sovereignty.
As Andreas Osiander pointed out, “State sovereignty is really a twentieth-century concept based more on belonging and the projection of power than on the nuances of Westphalia” (Silverburg 2011, 17). Arguably the most disappointing aspect regarding the establishment of the UN Charter was, and still is, its failure to consider how conflicts with state-collapsing potential would force state-interventions. Where intentions may have been considered good, state actors-with the capacity to intervene could not have been reasonably expected to stand idly by and allow the perpetration of gross human rights violations. Where intentions may have been considered bad, those with the ability to align themselves strategically with unmatched power, have tended to “intervene” predatorily or invade in the name of intervention to expand their conquests. That both intentions have been exercised in the face of claims of sovereignty supports the notion that sovereignty is a myth.
Conflict arising in the South China Sea and East China Sea is a dilemma in which all of the elements initially mentioned above converge. As China attempts to invoke sovereignty claims as a means to protect its so-called territory, others such as Japan, Vietnam, and the Philippines intend to challenge such notion. Further, the U.S. (superpower) has an allied commitment to both Japan and the Philippines which include providing military support. Further, as much as China would prefer to keep the U.S. from intervening in its affairs, “23 percent” of the “$5.3 trillion in total trade passing through the South China Sea” offers an economic incentive which demands political influence on the decision-making process and security agreements (Council on Foreign Relations 2013).
In much the same way states aim to balance the power of other states, certain legal mechanisms aim to counter others. For example, although Japan argued the Treaty of Shimonoseki signed after the Sino-Japanese war did not mention the Diaoyu/Senkaku Islands, China argued the Cairo and Postdam declarations obliged Japan to renounce claims to all territories (CFR 2013). In other places, international laws have failed to secure prosecutions because legal provisions have been too weak to allow clear access into foreign territories as demonstrated by the U.S. Supreme Court ruling in Kiobel v. Royal Dutch Petroleum. In this case, “…the human rights abuses alleged to have occurred in Nigeria were too remote from the U.S. to provide for federal court jurisdiction under the Alien Tort Statute” (Hoffman 2013). In essence, sovereignty, and the non-interventionism which it promotes, prevented the U.S. from imposing measures of justice for acts committed in Nigerian territory.
Optimistically, as laws such as the Alien Tort Statue evolve, the jurisdictional roadblocks will be further removed and claims of sovereignty will no longer provide shelter to those who stake illegitimate claims on territory or insist on inflicting abuse on their populations. More importantly, regarding sovereignty, the question is not whether laws exist to provide a platform for securing a state’s interest in keeping others out of its affairs, but whether or not said state can project the necessary power (i.e. legal, political, economic, military, etc.) to force others to do so.
Silverburg, Sanford R. 2011. International Law: Contemporary Issues and Future Developments. Boulder [Colo.]: Westview Press, 2011. eBook Collection (EBSCOhost), EBSCOhost (accessed December 7, 2015).
Council on Foreign Relations. China’s Maritime Disputes. 2013. http://www.cfr.org/asia-and-pacific/chinas-maritime-disputes/p31345#!/ (accessed December 09, 2015).
Hoffman, Paul, interview by Naomi Roht-Arriaza. In Pursuit of Torturers – Legally Speaking (March 2013).