Sovereignty

While the previous section emphasised that de facto states can be considered as states, this section shows the differences between confirmed and unrecognised states by using the concept of sovereignty. A short but thorough overview will be given of the concept with an emphasis on two aspects, or dichotomies to be precise: those of internal-external and juridical-empirical dimensions. The authors chosen have contributed to the study of sovereignty and/or have approached the concept using these dichotomies.

Kalevi Holsti (2004) distinguishes internal and external sovereignty, which he describes as a ‘foundational institution of international relations because it is the critical component of the birth, maintenance and death of states’ (p. 113, emphasis original). Internal and external dimensions help to define sovereignty and are critical to Holsti’s claim that in international relations the concept is reasonably clear despite being one of the notable contested concepts of social science. Internally, sovereignty is a ‘supreme authority within a defined terri-tory’ and, externally, the state ‘is not legally subject to any external authority’

(Holsti, 2004, p. 113).

Janice Thomson (1995) tries to establish a link between theory and empirical research and therefore looks for a definition that might be more suitable for the latter. She gives a working definition of sovereignty as ‘recognition by internal and external actors that the state has the exclusive authority to intervene coercively in activities within its territory’ (Thomson, 1995, p. 219). As Thomson herself notes, this is derived from the definition used in international law with an added element of recognition. Five elements arise from this definition: recognition, state, authority, coercion and territory (Thomson, 1995, p. 219). While analysing the recognition component, Thompson (1995, p. 220) argues that states’ capabilities also play an important role in acquiring sovereignty. At least, this was so throughout European history but in the era of decolonisation it is not that important. The new sovereignty regime, as Jackson

(1990) put it, does not require capabilities to deal with internal and external threats and impose authority within a state’s territory.

Robert Jackson’s (1990) approach to sovereignty can also be viewed as dichotomous. The first issue is one of positive and negative sovereignty, inspired by Isaiah Berlin’s idea of positive and negative freedom. Starting with negative sovereignty, Jackson (1990, p. 27) describes it as ‘a legal foundation upon which a society of independent and formally equal states fundamentally rests’. Next to it is positive sovereignty that is ‘a substantive rather than a formal condition’ (Jackson, 1990, p. 28). A government which has positive sovereignty is capable of providing the nation with essentials. While negative sovereignty is absolute in nature, positive sovereignty can vary between diffe-rent states: some are more capable than others.

Jackson (1990, p. 32) also writes that ‘sovereignty in international relations signifies constitutional independence of other states’. This approach indicates that Jackson analyses the external side of sovereignty and also emphasises its juridical nature. But there are elements that refer to factual sovereignty in his approach. Jackson uses the metaphor of a game to describe sovereignty where there are two sets of rules – constitutive and instrumental (Jackson, 1990, p. 34).

In what he calls classical sovereignty, the former meant rules of the game and the latter strategies used by actors. When speaking about actors, Jackson (1990, p. 38) introduces empirical statehood as a characteristic of the players – sovereign states. Government needed to have authority over the state’s domestic and international affairs to be part of the game. Together with the notion of negative and positive sovereignty, this idea corresponds to the actual sovereignty of Krasner and Kurtulus. Jackson’s idea of new (as opposed to classical) sovereignty will be analysed later in this thesis.

What political scientists refer to as sovereignty is in international law referred to as independence (Crawford, 2006, p. 89). The legal meaning of sovereignty is more of a consequence of statehood, the state’s competence, rather than a criterion for statehood. Therefore we will look at the concept of independence, which corresponds to the sovereignty of other authors viewed in this section. Crawford distinguishes two types of independence – formal and actual independence. Formal independence ‘exists where the powers of a government are vested in the separate authorities of the putative State’ (Craw-ford, 2006, p. 67). The basis for formal independence comes for example from the constitutional arrangement of a territory or from a treaty. It can be seen as a juridical aspect of independence even though Crawford does not bind it to recognition. Real or actual independence is defined as ‘the minimum degree of real power at the disposal of the authorities of putative State that is necessary for it to qualify as ‘independent’’ (Crawford, 2006, p. 72).

Also not emphasising recognition, Crawford does admit, however, that it could be an important factor, along with longevity, when one needs to assess statehood in borderline cases. These are cases where the link between formal and actual independence is blurred. These cases possess either factual or formal

independence but lack the other. Crawford (2006, pp. 88–89) gives some presumptions that could be helpful in ‘applying the criterion of independence as a basis for statehood’ and according to these presumptions the element of formal independence dominates over the actual.

Ersun Kurtulus (2005) distinguishes two approaches to sovereignty: spatial dimensions and dichotomies. He takes the latter approach and tries to con-ceptualise sovereignty from a set of binary questions. Among other dichotomies that might characterise sovereignty, two sets are important for this thesis. The first is the distinction between factual and juridical state sovereignty, with the former referring to actual phenomena and the latter to legal status. The definitions of factual and juridical sovereignty share some aspects, such as the agent being a state or similar entity and sovereignty being exercised within a certain territory and independent of agents outside of this territory; but they differ as to whether sovereignty as a condition according to law or as a matter of material circumstances makes the agent supreme (Kurtulus, 2005, p. 84).

Kurutlus (2005, pp. 63–64) also gives three ‘cogent arguments’ to support this kind of dichotomisation:

 First, legal rights must have material capabilities to enforce them. This idea is derived from political theory; capabilities materialise these rights.

 Second, the historical perspective says that these two kinds of sovereignties follow each other temporally. Factual sovereignty is antecedent to juridical sovereignty.

 Third, from the perspective of international law, this distinction is useful in understanding what Kurtulus calls territories with double status.

From the perspective of this analysis, further points are especially useful.

Kurtulus (2005, pp. 64–65) proposes two additional ‘immediate advantages’ of clarifying political rhetoric and incorporating de facto entities into analysis of sovereignty. The latter is particularly important as these entities ‘aspire to international juridical personality while controlling a demarcated piece of territory’ (Kurtulus, 2005, p. 65).

The second dichotomy that interests us is that of external and internal aspects. Kurtulus calls this the issue of ‘spatial division of power or authority’

(Kurtulus, 2005, p. 81) and classifies it as something of a sub-issue of divisibility and indivisibility. In the case of judicial sovereignty, this is not a problem ‘as possession of one form is considered to imply, by definition, possession of the other’ (Kurtulus, 2005, p. 81). In the case of empirical or factual sovereignty, the problem appears to be more complicated. An entity can have internal but lack external sovereignty or vice versa. A ‘normal’ state has both but some states may have neither. According to Kurtulus, possession of either is the outcome of power relations with internal sovereignty meaning the capability to exert authority within one’s boundaries and external sovereignty meaning doing so in relations with other states.

Stephen Krasner (1999) proposes four meanings of sovereignty and also divides them in the internal-external dichotomy. The two meanings that make up the internal sphere are domestic and interdependence sovereignty, the external meanings are Westphalian and international legal sovereignty.

Domestic sovereignty has been, according to Krasner, the meaning most associated with the term sovereignty. This meaning deals with issues of authority within the state which again has two dimensions – organisation and effectiveness. The former means the way a state is organised, whether it is a democracy or dictatorship, or a unitary or federal state. The latter means whether the one who has the authority actually controls the state. An important aspect of Krasner’s approach to domestic sovereignty is that it does not need to have any influence on the external dimensions of sovereignty. The model of organisation and the extent of actual authority are ‘not necessarily related to international legal or Westphalian sovereignty’ (Krasner, 1999, p. 12). This does not mean that there cannot be any connections. A weak state might lose its Westphalian sovereignty to stronger neighbours, for example. But there is no logical connection between the two. A weak state might just as well retain its Westphalian sovereignty.

The other internal meaning of sovereignty is that of interdependence, which deals with the issue of border control. The flow of goods, people or anything that can move across borders between states requires control over the borders and the ability to have this control can be seen as sovereignty. It is tied to the control element of domestic sovereignty, but again, as Krasner (1999, p. 13) claims, it has no logical relation to the external dimensions of the term.

The external dimension also consists of two different meanings. The first of these, international legal sovereignty, is similar to the meaning of juridical sovereignty proposed by Kurtulus above. Krasner’s main feature of inter-national legal sovereignty is recognition. Krasner (1999, p. 14) writes that ‘the basic rule for international legal sovereignty is that recognition is extended to entities, states, with territory and formal juridical autonomy’. And he adds that recognition must be given by other states (p. 16). Occasionally this recognition is meant for governments, but Krasner sees this practice, first, as uncertain because of the possible political reasons behind it and, second, as action that violates the basic principle of granting recognition to juridically independent territorial entities.

International legal sovereignty offers many advantages. It can secure external resources (enter contracts and alliances, get foreign capital, for example), it gives secure status in other states’ courts, and provides immunity for diplomatic representatives (Krasner, 1999). However, recognition is not necessary for all these benefits. Non-recognised entities or governments can also enjoy the existence of allies or being invited to ‘sit at the table’, but international legal sovereignty reduces uncertainty in interactions with other states. On the other hand, it does not guarantee territorial integrity or the existence of any state.

The fourth meaning of sovereignty is Westphalian. This meaning can also be described as autonomy and is similar to the actual or factual sovereignty that Kurtulus wrote about. It is based on two aspects: territoriality and the exclusion of external actors from domestic authority structures (Krasner, 1999). The main principle governing the latter aspect is non-intervention. Westphalian sovereignty can be violated both voluntarily and coercively and the principle of non-intervention covers coercion. As Krasner notes, intervention has received more attention in the literature than invitation. This is understandable, because the subject has been more prominent in both international law and practice. The principle of non-intervention is written into the UN Charter and has generated debates throughout history. Invitation, voluntarily granting power to some other state or international organisation, also violates the autonomy of the state but is less debated, with the European Union a prime example. While intervention violates both international legal and Westphalian sovereignty, invitation concerns only the latter.

Another author who conceptualises sovereignty on an internal-external continuum is David Lake (2003). Lake (2003, p. 304) defines sovereignty as ‘a type of authority relationship’ but concedes that the concept is difficult. It has not been conceptualised clearly enough. Taking into account the internal-external dimension, Lake (2003, p. 305) proposes the following definition: ‘an attribute of units which, depending on the referent, entails relationships of both hierarchy and anarchy’ (emphasis original). His internal sovereignty is Krasner’s domestic and external international legal sovereignty. External sovereignty therefore concerns recognition. Factual or Westphalian sovereignty is analysed by Lake, but not defined as a separate form. In a footnote Lake (2003, p. 305) treats this form as a ‘corollary to juridical sovereignty’.

Berg and Kuusk (2010) have also dichotomised sovereignty. When conceptualising attributes of sovereignty, they claim that internal and external sides of sovereignty are equally important ‘because entities’ internal legitimacy and external recognition issues matter most in the praxis to relatively locate them within international society’ (Berg & Kuusk, 2010, p. 42).

Moreover, the juridical and factual sides have been distinguished as de jure sovereignty and de facto power respectively, although only it appears in the case of the external side of sovereignty. However, in analysing the relative sovereignty of entities, the authors suggest three groups of attributes in

‘symbols and/or constitutional arrangements, and world standing’ (2010, p. 42).

The first two are presented as alternatives and can be treated as one group and can roughly be seen as part of de jure attributes. The latter can be seen as power variables.

Most of what Berg and Kuusk (2010, p. 43) call ‘semi-quantitative’ analysis is based on internal-external dimensions. Forty-one cases including ‘normal’

states, de facto states and other possible entities that are present in the contemporary world are involved in the analysis. De facto states have lower scores in external sovereignty, but do not make up a homogenous group in

internal sovereignty. Both lower and higher scores are present in this category.

As expected, most confirmed states have high scores in both categories.

The dichotomies described above have been summarised in Table 1. The two-by-two table is built to some extent on the approach of Stephen Krasner, with international recognition added to the fold. The distinction between internal and external dimensions within empirical sovereignty might be a little blurred because the states’ capabilities are not differentiated between those that are meant for internal control as such and those that are meant for defensive actions as such. States with capabilities are usually good in both areas; it is a practical question of distributing one’s resources and not a theoretical problem of two very different kinds of capabilities.

Table 1: Dimensions of sovereignty

juridical empirical

internal domestic constitutional arrangement

internal authority and control;

control over borders

external

international recognition;

capabilities to enter into international agreements

independence of external

actors; capabilities to defend itself In the analysis of de facto states, and indeed in the analysis of their relative positions in the international system, the external dimension of sovereignty is more important. This will also be visible in the next section where different notions and names of de facto states are analysed.