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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.
Since the end of World War II the international political system has been organised around the notion of equal sovereignty of states, internal competence for domestic jurisdiction, and preservation of existing boundaries, and yet that these ideals have been violated frequently is incontestable (Elden 2006, 11). The concept of territory is traditionally understood to be a bounded space under the control of people, and in this context usually a state (Elden 2005).
What is known as the sovereign state model has established itself as the cornerstone of the international system. The relationship between territory and sovereignty has been seen to challenge not only the state itself however, but also regional and global security throughout history. The legal principle of territorial integrity then, is of fundamental importance when looking at the context of the ‘war on terror’. A number of states have been seen as potential ‘breeding ground[s]’ for lawlessness such as Somalia, Lebanon, Pakistan, Afghanistan and Iraq (Elden 2009, 109).
The following, drawing primarily upon the work of Stuart Elden will provide an analysis into the concepts of state sovereignty and territorial integrity before discussing the notion of ‘contingent sovereignty’. This section will offer an overview of the arguments that the US has promoted in National Security Strategy documents, that states have a responsibility to maintain effective political control within their territories, or find that its sovereignty is more likely to be contingent. A background investigation into the concept of territory will build the argument that the idea of sovereignty as the cornerstone of international law in global politics may not be as absolute as previously imagined.
The case of post 2001 Afghanistan will be drawn upon as an example of a so-called ‘weak’ state, where the relationship between sovereignty and territory is exposed. The impact contingent sovereignty has had on territorial integrity has been two-fold. Crucially it has exposed the necessary paradox between the call for intervention by the international community and the branding of challenges to territorial boundaries as terrorism. Finally there will be a brief discussion into the moral arguments mentioned in the literature that emerged in the years following the September 11, 2001 attacks, focusing on the future of state sovereignty in international law.
The concept of sovereignty has received somewhat of a surge of attention in recent years. Debates over the prospects for modernity, the concept of sovereignty and its normative implications have come under mounting scrutiny. Part of this review of sovereignty has dealt with the position of the state as its highest social realisation (Onuf 1991, 425-426).
Indeed over the past few centuries more people have found themselves living in a world organised territorially in a system of sovereign states (Jackson 2007, 303). As Robert Jackson has observed, ‘the sovereign state system and globalisation emerged and evolved together’ (Jackson 2007, 303). The relationship connecting the notion of sovereignty to the modern state system has undoubtedly been one of mutual exclusivity and one that dates back to the sixteenth and seventeenth centuries.
The Western state system enclosed weaker indigenous empires starting in the Americas and culminating in Africa in the nineteenth century before transferring sovereignty over to their previous colonial dependencies (Jackson 2007, 304). What is typically known as the Westphalian sovereign state model then, comprising the principles of autonomy, territory, mutual recognition and control has little in common with events surrounding the Peace of Westphalia and as John Agnew has noted ‘sovereignty in anything like its modern form is a relatively recent [development]’ (1994).
Similarly, the word model ascribed to the term sovereign state is a telling hint of the inaccuracy of the description assigned to entities regarded as states. The idea of a golden age of autonomous sovereign state actors is a widespread illusion and feeds the misconception that sovereignty is being eroded. Rather Jackson notes a fundamental shift in its status as an international norm (Eudaily and Smith 2008, 312, 319).
The rules of the sovereign state model rather have been constantly violated throughout history, and therefore as Stephen D. Krasner has eloquently argued, has emerged as a mere ‘cognitive script’ (2001, 17). In this sense, F. H. Hinsley was perceptive to argue in his 1966 book Sovereignty that the modern form of the concept developed in response to, and in support of the emergence of the state as a dominant feature of the modern world.
Sovereignty then, as established above has become characterized as a basic rule of coexistence within the modern state system (Biersteker and Weber 1996, 1). In contemporary usage four common types of sovereignty are put forward: interdependence sovereignty, domestic sovereignty, Vattelian sovereignty, and international legal sovereignty (Krasner 2001). It is evident that the above dimensions of sovereignty are interrelated. Whether concerning the states authority internally or externally, each of the dimensions is expressed in a spatially explicit manner.
This expression of the state in the form of territory spatialises power relations and therefore reconceptualises many aspects of international politics (Eudaily and Smith 2008). Such a model of sovereignty forms the basis which the United Nations sets out international law. Based on the concept of the state, and in turn upon the foundation of sovereignty, international law considers the nature of territory central to its functioning (Shaw 2003).
Emphasis on territory as a central aspect of international law has prompted a corresponding set of rules protecting its inviolability. The 1933 Montevideo Convention stated:
Part (b) a defined territory is of particular concern here as it explicitly deals with the extent of a states sovereign power (Elden 2009). As previously mentioned, these aspects constitute the legal term ‘territorial integrity’. In this sense, international law recognises the rights of states to continue to exist and to exercise sovereignty over specific territories (Hendrix 2001).
The principle of the territorial integrity of states is well established and protected by a series of consequential rules prohibiting interference within the domestic jurisdiction of states and forbidding the threat or use of force against the territorial integrity and political independence of states. The principle has been particularly emphasised by Third World states in the past (Shaw 2003).
The basis of territorial integrity as a principle can be seen as a stabilising factor during periods of decolonisation. Utilising the idea of uti possidetis states would inherit the boundaries of colonies on independence to instil a degree of normalcy (Elden 2006). It has been suggested that the actions of the UN relating to decolonization helped to link sovereignty with territory and has thus informed the ‘norm of sovereignty-as territorial-integrity’ (Barnet and Finnemore 1999).
From this it can be concluded, that international law largely attempts to protect existing borders over recognizing their artificial nature (Elden 2006). As Stuart Elden notes, the ‘necessary myth of territorial integrity and absolute sovereignty’ elevates the principle above many others in international law including self-determination (2009). The legal principle of territorial integrity therefore is directly derived from the principle of state sovereignty and reinforces the opinion of most international scholars, that state sovereignty is the logical foundation for the international legal system (Brownlie 1998).
Leonhardt van Efferink, editor of EG, will be convening a Country Risk Analysis Summer School at Maastricht University in July/August:
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Photo courtesy of the interviewee