Earned sovereignty: the political dimension.

• Author: Hooper, James R.

The contemporary world is beset by conflicts and issues that seem to challenge the utility of sovereignty as conventionally understood. (1)

Stephen D. Krasner

INTRODUCTION

There are currently over fifty sovereignty-based conflicts throughout the world, and nearly a third of the Specially Designated Global Terrorists listed by the United States Treasury Department are associated with sovereignty-based conflicts and self-determination movements. (2) To date, the "sovereignty first" international response to these conflicts has been unable to stem the tide of violence, and in many instances may have contributed to further outbreaks of violence. This article will argue that the "sovereignty first" doctrine is slowly being supplemented by a new conflict resolution approach which we dub "earned sovereignty."

This article is the first in a series of three articles prepared under the auspices of the Public International Law & Policy Group that discuss the emerging approach of earned sovereignty, and is the product of the melding of two presentations delivered at the University of Denver by the co-authors. The purpose of this article is to provide a detailed definition of earned sovereignty, and its sub-components, as well as to track the development of the approach through recent state practice. The second article sets forth the legal basis for the approach, and the third article tracks international efforts to employ the approach as a basis for structuring a long term resolution of the Kosovo conflict.

As noted in the introductory note to this series of articles, In light of recent state practice, the emerging conflict resolution approach of earned sovereignty may be characterized as encompassing six elements--three core elements and three optional elements.

The first core element is shared sovereignty. In each case of earned sovereignty the state and sub-state entity may both exercise sovereign authority and functions over a defined territory. In some instances, international institutions may also exercise sovereign authority and functions in addition to or in lieu of the parent state. In rare cases, the international community may exercise shared sovereignty with an internationally recognized state.

The second core element is institution building. This element is utilized during the period of shared sovereignty prior to the determination of final status. Here the sub-state entity, frequently with the assistance of the international community, undertakes to construct institutions for self-government and to build institutions capable of exercising increasing sovereign authority and functions.

The third core element is the eventual determination of the final status of the sub-state entity and its relationship to the state. In many instances the status will be determined by a referendum, while in others it may involve a negotiated settlement between the state and sub-state entity, often with international mediation. Invariably the determination of final status for the sub-state entity involves the consent of the international community in the form of international recognition.

The first optional element is phased sovereignty. Phased sovereignty entails the accumulation by the sub-state entity of increasing sovereign authority and functions over a specified period of time prior to the determination of final status.

The second optional element is conditional sovereignty. Conditionality may be applied to the accumulation of increasing sovereign authority and functions by the sub-state entity, or it may be applied to the determination of the sub-state entity's final status. In either case the sub-state entity is required to meet certain benchmarks before it may acquire increased sovereignty. These benchmarks may include conditions such as protecting human and minority rights, developing democratic institutions, instituting the rule of law, and promoting regional stability.

The third optional element, constrained sovereignty, involves continued limitations on the sovereign authority and functions of the new state, such as continued international administrative and/or military presence, and limits on the right of the state to undertake territorial association with other states.

It is important to note that the approach of earned sovereignty does not perceive "sovereignty" to be a unitary right, but rather a bundle of authority and functions which may at times be shared by the state and sub-state entities as well as international institutions. (3) Sovereign functions may include control over foreign relations, defense, policing, immigration, banking, currency, trade, development of natural resources, taxation, transportation, education, social welfare and judicial matters.

To further develop an understanding of the emerging approach of earned sovereignty this article will review recent state practice in which the approach has been employed to bring about or attempt to bring about a resolution of a sovereignty-based conflict. The focus of the review will be on deducing common themes and distilling key conditions for the utilization of the emerging approach. Case studies include the Road Map for Peace for the Israeli/Palestinian conflict; the Good Friday Accord for Northern Ireland; the Machakos Protocol for Sudan, the Baker Peace Plan for the Western Sahara; UN Security Council Resolution 1244 for Kosovo; the Dayton Accords for Bosnia; UN Resolution 1272 for East Timor; the Comprehensive Agreement for Bougainville; and the new constitution for the Union of Serbia and Montenegro. These examples include proposed peace agreements, successful peace agreements and unsuccessful peace agreements. As the success of an agreement is based on both its substantive provisions as well as numerous external factors, such as the political will of the parties, we have sought to reference a wide variety of agreements, and not just those deemed to be unqualified successes.

It is important to recall that the aim of this article is not to argue for the creation of a new conflict resolution approach, but rather to explore some of the ways in which earned sovereignty is already being practiced around the world. This exploration is intended to provide greater clarity regarding the most useful instruments and tools that practitioners have at their disposal to make constructive use of earned sovereignty.

As such, this article seeks to contribute to a more informed debate about the circumstances in which earned sovereignty may be applied constructively. To note that earned sovereignty can be utilized in the context of particular international disputes is not to assert that it is a panacea that can be applied to resolve all international problems involving disputes over rival territorial claims, internal rebellions or self-determination movements. Many conflict resolution practitioners that have the responsibility to utilize conceptual tools in real-world situations where lives are at stake and misjudgments can have severe consequences welcome such a debate. Diplomats have recognized the need to provide a solution where the involved parties will only stop the violence upon guarantees of independence. For some time negotiators have employed the tools of earned sovereignty selectively in crisis prevention and conflict resolution situations. Their attempts to use such techniques, however, have been hindered to some extent by the unwillingness of state actors in the international system to acknowledge the utility of the concept even as it was increasingly being applied.

While the origins of the approach of earned sovereignty are uncertain, it is apparent that the crisis in the former Yugoslavia highlighted the need to develop a new conflict resolution approach to resolving sovereignty-based conflicts. In 1991 in the former Yugoslavia the international community was faced with the choice of recognizing the Yugoslav sub-state entities of Croatia and Bosnia as independent states, which was sure to lead to ethnic violence by the Serb-minority, or to continue to affirm the territorial integrity of Yugoslavia, which was sure to encourage President Milosevic's efforts to ethnically cleanse large areas of those two entities. In the end, the European Union and United States delayed for too long the recognition of the successor states, and when they did eventual recognize Croatia and Bosnia they did so without any capable preparation for the foreseeable consequences. In hindsight, had the European Union and the United States undertaken a process of earned sovereignty for Croatia and Bosnia whereby they were slowly extricated from Yugoslavia in a manner which protected the legitimate interests of the Serbian minority and created democratic institutions, the ethnic conflicts might have been avoided.

Learning from these mistakes the European Union, United States and the United Nations have increasingly sought to rely upon the approach of earned sovereignty as it provides increased flexibility for determining the timing of eventual independence and an opportunity to build functioning institutions and a track record of protecting minority and human rights prior to international recognition.

RECENT PRECEDENT FOR THE EMERGING APPROACH OF EARNED SOVEREIGNTY

While numerous peace agreements include the elements of earned sovereignty, this article will focus on the recent surge in agreements which embrace all three of the core elements and many of the optional elements. This section provides a brief description of the agreements which will be relied upon in the remainder of the article to illustrate the various elements of the approach of earned sovereignty.

The Israeli-Palestinian Roadmap was developed by the Quartet of the United States, EU, UN and Russia and involves a three-phased plan for resolving the middle east conflict through the achievement of a secure Israel, and an independent and democratic Palestine. (4) To accomplish this objective the Roadmap...