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Jamie Scudder is a Country Risk Analyst for Maplecroft. She obtained a Masters degree in Geopolitics from King's College London where she secured a distinction.
The events of September 11, 2001 brought into sharp relief the vital aspects of sovereignty states organize themselves around. The subsequent characterization of al-Qaeda as a diffuse and deterritorialized network by the US rather than operating within existing territorial frames has obscured its enduring territorial nature. This has led some scholars to argue that contemporary global security threats are emerging that are inherently transnational in nature extending beyond the rigid territorial framework of the modern Westphalian state system (Behr 2008, Vollaard 2009).
Contrasting traditional notions of security issues with transnational security issues, threats such as transnational terrorism emerge as particularly relevant. Here transnational actors no longer correspond to the territorial principles of traditional security and as a result pose an unprecedented challenge to the ‘inside’-‘outside’-logic of the state (Behr 2008, 359). Following on from this, the key principles of modern state security are bound up with assertions of territoriality. The guarantee of security by the state is held as one of its fundamental legitimising functions. The state is seen as both the provider and space of security. The diversification of the security threat deviating outside of the territorial bound spaces of the nation-state has implications for traditional definitions of sovereignty as the highest form of authority within a given territory.
In his 2008 work Hartmut Behr elaborates this argument by suggesting that ‘national security’ strategies that extend to territorial responses are inherently paradoxical in nature (2008, 359). The following will aim to highlight the link between sovereignty and territory, or as Elden has referred to it as territorial integrity as ‘the spatial extent of sovereignty’ (2009, 171). An examination of how sovereignty has been used in arguments surrounding the contemporary ‘war on terror’, it will show how the characterisation of sovereignty has been amended to further the geostrategic gains of some states, notably the United States. These arguments will be used to further discuss the recent targeting of states that are believed to ‘harbour’ terrorists and will concentrate on the example of Afghanistan in the immediate period following the September 11 attacks in 2001.
The question of whether international law permits the use of force in a pre-emptive manner to avert future attacks has taken on added significance in the aftermath of the events of September 11,, 2001 (Greenwood 2003, 8). As it stands Article 2(4) of the 1945 UN Charter introduces the most stringent limitation on the use of force by States against one another:
The provision to prohibit all use of force against another State, unless that use of force is one of the limited exceptions provided in international law (military action in self-defence and military action taken or authorized by the U.N. Security Council) or has become part of customary international law binding all states. To some, those actions not consistent with the above demonstrate a disturbing willingness by certain governments to disregard international law and the key principles of territorial integrity and state sovereignty.
Indeed it could be argued that state sovereignty has come under increased pressure recently, notably through the notion of ‘contingent sovereignty’ (Elden 2006, 14). Contingent sovereignty describes the view that a state’s sovereign rights are not absolute, rather they depend on a series of obligations as well as privileges. Originating from an argument grounded in the ethics of humanitarian intervention, the limits of the territorial integrity rule are highlighted in cases such as Kosovo and Rwanda.
States are increasingly being held to have internal responsibilities, and a failure to uphold such responsibilities has led to external intervention on the grounds of the international community’s ‘responsibility to protect’ (Elden 2009, 153). Later, policies implemented in documents such as the 2002 US National Security Strategy put forward and extend the ways in which intervention becomes legitimate to combat the pursuit of weapons of mass destruction or the harbouring of terrorists (Elden 2009). In this case states that fail to control activities within their own territory relinquish aspects of their sovereignty and therefore permits worried nations to take any action deemed necessary for their self-defence (Carter et al. 1998). This argument maintains that in such exceptional circumstances norms of sovereignty do not apply (Elden 2006, 14).
The US occupation of Afghanistan and later Iraq are illustrations of the use of contingent sovereignty, and its implications for the relationship between territory and sovereignty (Figure 1). In the aftermath of September 11, 2001 the U.N. Security Council declared a number of resolutions as an international response. On September 12, Resolution 1368 stated that the Security Council was prepared ‘to take all necessary steps to respond to the terrorist attacks’ (UNSC 2001). This resolution and others in the days that followed, despite its general nature with regards to language became a landmark in international law. For the first time Article 51 was invoked and applied in response to attacks from non-state actors. In his article debating the pre-emptive use of force in international law, Christopher Greenwood argues that the international reaction to the events of September 11, 2001 ‘confirms the commonsense view that the concept of armed attack is not limited to State acts’ (2003, 17). The argument at this time centred on the condemnation of the Taliban, the de facto government at the time of the terrorist attacks in the United States. Greenwood, although recognising the Taliban was not responsible for the attacks, argued it ‘had undoubtedly violated international law in permitting al-Qaeda to operate from its territory’ and had therefore ‘violated the general duty of the state under international law not to allow its territory to be used as a base for attacks on other states’ (2003, 111-113). Elden rightly points out however that the language in the U.N. General Assembly Resolution 3314 (XXIX) gives rise to significant ambiguities as to whether al-Qaeda can be understood as ‘another State’ or if described as ‘armed bands, groups, irregulars, or mercenaries’ whether they can be viewed as sent ‘on behalf of a State’ (2009, 74).
The key aspect the international response aimed to highlight was how Afghanistan had broken international law by allowing certain activities to occur within its territory. In this sense Afghanistan had failed to exercise adequate sovereignty over its respective jurisdiction and thus had not fulfilled its obligations as a sovereign state. Afghanistan had failed to exercise one of the key definitions of sovereignty – effective political control or the ‘monopoly of legitimate physical violence’ within its territory by failing to prosecute criminals living within its borders, and as a result its sovereignty can be deemed as contingent (Elden 2006, 15).
Despite the proclamations of the above, Resolution 1378 subsequently reasserted the principle of territorial integrity and a strong commitment to the sovereignty, independence and national unity of Afghanistan. Additionally, the successive Bonn Agreement on the new Afghan government on December 5, 2001 also reinforces the territorial integrity of the state (BBC 2010). While foreign intervention was permitted as a result of the failure of the state to exercise effective political control within its territory- one of the standard definitions of sovereignty, this was contrasted by the call to bolster the territorial integrity of all states in order to ensure global stability.
Amitav Acharya applies Krasner’s idea to the Bush administration’s thesis of ‘selective sovereignty’ in which state intervention is paradoxically justified as a means of ensuring a ‘well- ordered world of sovereign states’ (2007, 274). The Bush administration put forward the ‘limits to sovereignty’ thesis in December 2001 ahead of its retaliation against the Taliban. As elaborated above, the thesis aimed to equate the war on terror with earlier discourse on humanitarian intervention.
This linking intended to widen the parameters for intervention to include terrorism. Additionally, this mode of intervention was broadened from reactive to preventative and was later the basis of what has been termed the Bush Doctrine. Some have argued through a reading of Article 51, that the conditions of self-defence is an inherent expression of all states under customary law, and is therefore not subject to prior authorization by the U.N. Security Council (Greenwood 2003, 11).
The United Kingdom and the US for example maintained that the right of self-defence extends to when a threat is imminent. In this sense the US endeavour to limit sovereignty has been justified in the name of protecting it and of upholding the system of sovereign states. Acharya uses Krasner’s argument of ‘organised hypocrisy’ in the international system to advance the case that US national security resembles more a ‘disorganised hypocrisy’ during the war on terror.
Acharya is alluding to the uneven distribution of responsibility of those involved in the war on terror and to the actions of the coalition that have not, breaking away from Krasner’s argument, gone unnoticed.
Jamie Scudder: Territorial integrity 3 - humanitarian interventions and R2P
Jamie Scudder: Territorial integrity 4 - statehood, rule of law and peoples
