Article by: Jamie Scudder (King’s College London, December 2010)
Tags: Territorial integrity modern states international political system jurisdiction Peace of Westphalia Lebanon Somalia Jamie Scudder
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.
Sovereignty and Territorial Integrity
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:
“The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states.”
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).
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.
Redefining State Sovereignty
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:
“All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.”
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.
The war on terror has arguably posed the most comprehensive challenge to contemporary forms of sovereignty in the international system. The notion of contingent sovereignty in which states are required to act responsibly, questions the legitimacy of claims to territorial integrity as an absolute in international law. The argument to support intervention in Afghanistan and later Iraq, through the extension of the humanitarian discourse that states have a responsibility to protect (R2P), was hinged on this notion.
The humanitarian discourse, emerging as a result of various incidents during the 1990s argues in favour of the limits to state sovereignty through emphasising the rights of the individual. The use of force by the US and NATO in the past has been morally based on the need for humanitarian assistance (Chopra and Weiss 1992). Indeed Kofi Annan has stressed the need to rethink the principle of territorial integrity in terms of the exclusive internal sovereignty of states (1999).
The statement concerning the implications of catastrophes in Rwanda and Kosovo, did not however intend to, firstly permit the action as a pre-emptive form of self-defence or, secondly, authorize action outside of the mandate of the U.N. The attempt to bring together the war on terror and the prior justifications for humanitarian intervention, Acharya comments ‘is one of the most remarkable ironies of US foreign policy after 9/11’ (2007 288).
The implications the war on terror has on the concept of territorial integrity and in turn the sovereignty of states then, goes further than that proposed through humanitarian arguments and therefore marks a fundamental shift in the state of sovereignty in the international state system.
In reality the response on the ground in 2001 shows intervention to be anything but humane. The present crisis in Afghanistan is an outcome of decades of internal conflict and foreign intervention that has long compromised its territorial integrity. The Bush administration’s goals in Afghanistan since late 2001, were to focus on relations with individual power brokers with the aim to counter the al-Qaeda threat. This has managed to fuel the insurgency and confound any hopes of promoting democratic governance and the rule of law (ICG 2009).
Seven years on and the state is still at war against extremists and descending into an increasing state of weakness that has been exploited by al-Qaeda and the Taliban (Rubin 2007). Effective control and security throughout the country has declined deeming access difficult to external forces (Figure 2). Intervention is seen as the remedy for states that harbour terrorists or develop weapons of mass destruction, and al-Qaeda has been dealt with as it were a state.
The fact that al-Qaeda is an inherently deterritorialised opponent, and although it remains inherently geographical in nature, its strategies act to challenge the basis of the existing international system. As Daanish Mustafa elaborates, ‘the sovereign spaces of nation-states and the nodal networks of international terrorism offer a fundamental challenge to the modern state-centred global geopolitics’ (2005, 82).
Territorial preservation, as Agnew explains is merely one aspect of a states territorial integrity (2005). The lack of territorial sovereignty is often a key characteristic of so-called failed states where effective monopoly over the internal means of violence is lost. The US invasion therefore contributed to the long running history of intervention in Afghanistan and as a result the US forces underestimated the prominence of other actors within the vacuum of the failed state.
Conflicts over territory raise a range of legal and moral questions that encompass the appropriate means for pursuing political goals to fundamental questions about the legitimacy of the current international system. Burke Hendrix has argued that international law does not provide a credible moral account of state territory (2001).
As the principles of self-determination and territorial integrity are in tension, so too is the relation between territorial integrity and intervention under the guise of humanitarian assistance, and more so under the recent rationale for the promotion of democracy.
Without suggesting qualification of the above questions it may be of value to reassess the association of the concepts of sovereignty and territory, which is so often taken for granted. As Agnew contends, ‘sovereignty is neither inherently territorial nor is it exclusively organised on a state-by-state basis’ (2005, 437). The artificial nature of such an alliance becomes more apparent when reviewing the situation in Afghanistan and other targeted states in the war on terror.
As the terrorist threat was believed to be at large within these ‘failed’ or ‘weak’ states, the state itself was targeted. The destruction caused has therefore been representative of the myth that sovereignty exists in absolute form entirely within the international states system. In this sense the concept of territory in international law with regards to sovereignty falls short.
Territorial integrity as a core principle of international law and the sovereign state system has come under increased pressure. On the one hand territorial sovereignty is increasingly seen as contingent, and other theoretical arguments are being advanced in favour of territorial preservation. As both of the above aspects are constitutive of the territorial integrity principle, this tension demonstrates a particularly problematic intersection at the heart of the territory-sovereignty nexus (Elden 2009). The war on terror is perhaps the latest example of this, although it can be argued that there is a continuity with events before 2001 and thus is part of a wider trend to impact state sovereignty.
The invasion and occupation of Afghanistan is an example of how an absence of effective territorial control facilitated alternative concentrations of power and as a result necessitated intervention. The production of a new functioning state out the ruins of a destroyed one, where a territorial vacuum without authority has enabled non-state actors to move in, was an unrealistic prospect if one is to look at other ‘failed states’. A policy review by the Obama administration has renewed the debate on how to defeat terrorist organisations such as al-Qaeda and its protectors, the Taliban by facilitating the growth of institutions involved in assisting the rule of law and legitimate governance. A departure from the narrow focus of counter-terrorism measures of the previous administration must be reformed if current efforts are to succeed (ICG 2009).
An examination of the concept of ‘contingent sovereignty’ and its impact has shed light on the nature of intervention in so-called ‘weak states’. The argument can also be extended to the treatment of other states that fit into the category of ‘strong-states’ where considerable amounts of resources have been invested in the build-up of weapons arsenals. The 2003 Iraq war, it could be argued, was built on this premise but Iraq showed both strong and weak characteristics in this sense (Elden 2009). In conclusion it may be of use to mention the status of international law as imperfect in its reconciliation of territorial integrity with self-determination.
Given that sovereignty has been taken to apply to states rather than peoples the question of how to deal with states that fail to follow particular norms is of pressing concern. In this sense a reading of international law has led some to argue that political theory should be rethought.
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