Earned sovereignty: juridical underpinnings.

• Author: Scharf, Michael P.

Sovereignty either is or is not.

--Stephen Leacock (1)

It is undeniable that the centuries-old doctrine of absolute and exclusive sovereignty no longer stands, and was in fact never so absolute as it was conceived to be in theory.

--Boutros Boutros-Ghali (2)

1. INTRODUCTION

   It has often been said that "the defining issue in international law for the 21st century is finding compromises between the principles of self-determination and the sanctity of borders." (3) Today, there are some 140 self-determination movements world-wide. (4) Those aspiring to obtain self-determination often resort to terrorism or armed conflict. Most of the groups on the United States (U.S.) Department of State's list of terrorist organizations are self-determination movements. (5) Meanwhile, there are currently secessionist conflicts under way in numerous countries including Anjouan, Azerbaijan, Bougainville, Chechnya, Georgia, Iraq, Israel, Kashmir, Moldova, Northern Ireland, Somaliland, Southern Sudan, Spain, Sri Lanka, Tibet, the island of Mindanao in the Philippines, and West Irian in Indonesia.

   This piece is the second in a trilogy of three simultaneously published articles in the Denver Journal of International Law that examine the emerging doctrine of "earned sovereignty," a concept that seeks to reconcile the principles of self-determination and humanitarian intervention with the principles of sovereignty and territorial integrity. This article sets forth the legal underpinnings for the doctrine, while the other two articles in the trilogy provide its policy foundations, and apply the doctrine to several modern case studies. Together, the three articles are the product of the Public International Law and Policy Group's "Intermediate Sovereignty Project," sponsored by a grant of the Carnegie Corporation. (6)

   Traditionally, international lawyers have adhered to a rigid notion of sovereignty. Under this view, sovereignty is "monolithic" and "possessed in full or not at all." (7) As one author has stated, "'sovereign,' like 'unique,' cannot take certain qualifying adverbs.'" (8) An entity either was or was not sovereign.

   This unyielding conception has hindered diplomats in their effort to craft creative means for resolving conflicts involving attempts at self-determination or secession. For example, "[t]here is little doubt that the collective inability of the Western powers to see beyond the statist/secessionist models was partly responsible for the collapse of Bosnia and the war in Krajina." (9) The adoption of extreme positions, dictated by the conventional view of sovereignty, from support for the sanctity of Yugoslavia to the recognition of the secession of its federal republics, was a recipe for disaster. (10) Conversely, where diplomats experimented with new conceptions of sovereignty without legal sanctification, the rule of law and role of international lawyers in the policy making process suffered. (11)

   To remedy this, it is necessary for international lawyers to adopt a new view of sovereignty existing as a spectrum, and recognize a range of intermediate sovereign statuses as part of that spectrum. Intermediate sovereignty and the associated concepts of deferred sovereignty, conditional independence, and provisional statehood may take the form of heightened autonomy for a group, earned recognition, or phased recognition. The term is meant to describe an entity that is something less than a fully sovereign state, but more than a sub-state entity.

   This article begins with an examination of the history of the concept of sovereignty, revealing that numerous states are in fact less than fully sovereign. Next, it analyzes the evolving principle of self-determination, focusing in particular on the emerging notion of a remedial right to secession. The concluding section explains how recognition of a more flexible and pragmatic conception of sovereignty and a remedial right to secession lays the legal foundation for application of the earned sovereignty concept.

2. THE MEANING OF SOVEREIGNTY

   There are several different meanings of the term sovereignty. (12) In the context of this article, sovereignty is concerned with establishing the status of a political entity in the international system. Under the conventional view, an entity qualified as a sovereign state if it had a territory, a population, a government and formal juridical autonomy. (13) If an entity did not qualify as a sovereign state, it was deemed a dependent or subordinate territory of a sovereign state. Thus, an entity was either sovereign or it was not. There was no such thing as an in between status such as "earned sovereignty."

   Sovereignty is perceived as a "ticket of general admission to the international arena." (14) A sovereign state is accepted as a juridical equal of other States. It is entitled to political independence, territorial integrity, and virtually exclusive control and jurisdiction within that territory. (15) Its sovereign acts are generally immune from civil suit in other states, its representatives are entitled to diplomatic immunity from both civil and criminal actions, and its ruler is entitled to absolute head of state immunity. (16) It can enter into agreements with other States. (17) It can be a member of international organizations. (18) Dependent or subordinate territories, in contrast, do not customarily possess any of these rights in the international system. (19)

   Contrary to the conventional view, since the dawn of the state system 355 years ago with the Peace of Westphalia, very few states have actually possessed full juridical autonomy. (20) Rather, most states in the world might more accurately be characterized as quasi-sovereigns.

   History is replete with examples of quasi-sovereign states, including the member states of the Federal State of Germany before the First World War, each of which retained the right to send and receive diplomats. (21) The reigning monarchs of these several component states of Germany were treated by foreign states as if they were the monarchs of fully independent entities. (22)

   Several quasi-sovereign states were permitted to ratify treaties and participate alongside sovereign states as full members of international organizations. India, for example, was a member of the League of Nations and a signatory of the Versailles Treaty even though it was still a colony of Britain. (23) Later, both India and the Philippines were permitted to serve as founding members of the United Nations (U.N.) even though they did not become formally independent from Britain and the United States until 1946 and 1947 respectively. (24) Andorra, which is a tiny territory nestled in the Pyrenees between France and Spain, became a member of the United Nations in 1993 and the Council of Europe in 1994 even though France and Spain have control over its security affairs and retain the right to appoint two of the four members of its Constitutional Tribunal. (25) The "freely associated states" of Micronesia, the Marshall Islands, and Palau have each attained U.N. membership although the United States continues to maintain control of their national security policy. (26) And Hong Kong, at the time a British Colony and currently part of China, became a founding member of the World Trade Organization. (27)

   On the other side of the spectrum are states that have ceded away portions of their juridical autonomy through treaties. Thus, the member states of the European Union can be deemed quasi-sovereign, in that the decisions of the European Court of Justice and the European Court of Human Rights have supremacy and direct effect within their territory. Similarly, any state that borrows money from an international financial institution such as the International Monetary Fund or the World Bank is subject to conditionality requirements that involve issues of what the World Bank terms "good governance." (28) Although these international commitments may be viewed as a manifestation of the exercise of sovereignty, the ultimate effect is in fact a diminution of the traditional attributes of sovereignty.

   Also relevant are states that have been stripped of their autonomy at the conclusion of international armed conflict. For instance, under the terms of the occupation statute that created the West German state in 1949, the allied powers retained authority over foreign trade and exchange, demilitarization, and foreign affairs including international agreements made on behalf of Germany. (29) The German state established in 1949 did not attain independent status until 1955, and even then it did not exercise full autonomy. (30) Similarly, after the Second World War, the basic constitutional structures and policies of the eastern European states, with the exception of Yugoslavia and Albania, were determined by the Soviet Union. (31) Through force or threat of force, Soviet Premier Joseph Stalin imposed dependent communist regimes throughout Eastern Europe, transforming a dozen states in the region into Soviet controlled satellites, which were nonetheless...