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									Tbilisi State University
Honorary Degree Lecture
10 October, 2011.

Part I

I would like to dedicate this lecture to my Georgian doctoral students, past and present. It is
a pleasure to see most of them here now.

Today, I’m talking about sovereignty. This is a very hot topic in international relations today.
It is also a matter of particular concern to Georgia, not least as a result of the war with
Russia in August 2008, Russian occupation of parts of Georgian territory, Russia’s
recognition of Abkhaz and South Ossetian sovereign statehood, and Russia’s claim to a zone
of interest in this region.

I begin with a discussion of the conventional meaning of sovereignty and the related
concepts of non-intervention, territorial integrity, and self-determination. I go on to
examine the history of these concepts in two sections: the record prior to the 20 th Century
and its evolution from 1900 to 1991. I then turn to how the post-Cold War era has
influenced understandings of sovereignty. And I conclude with some reflections on the
tensions between the concept of sovereignty and other concepts such as human rights,
national self-determination, and humanitarian intervention, between, if you will, order and
justice.

My argument is that the meaning of sovereignty is not fixed and permanent. It has evolved
and is continuing to evolve in response to historical circumstances and the practice of
states. In the Cold War period, particular understandings of sovereignty and related
concepts were fixed in normative theory and in international law. These fixed
understandings were in many respects contradictory and therefore potentially problematic.
However, given the systemic stability generated by bipolarity, this ambiguity did not matter
much and it was largely ignored. The end of the Cold War and the challenges of the post-
Cold War era have highlighted the conceptual tension between order, sovereignty, non-
intervention and territorial integrity on the one hand, and justice, rights, and self-
determination on the other. The Georgian example is a good illustration of the normative
disarray surrounding these concepts. We are not really sure anymore where we are on
these questions and what these concepts mean.

Why should we care? Norms such as these define appropriate state behaviour, and are
standards against which state behaviour can be judged. When they are clear and widely
accepted in the international system, they constrain state behaviour and generate
predictability in international relations. Most states abide by most norms most of the time.
When they are unclear or contradictory, they contribute to unpredictability and instability in
the system.

Turning to definitions, what is state sovereignty? At its most basic, sovereignty is exclusive
authority over a territory and the population living there. This authority is generally
associated with a monopoly on the organized use of force within the territory in question.
Internally, sovereignty implies that the state has the ultimate authority to take decisions
within its space. Externally, it implies that the state can do what it wants within its space
                                                                                              1
without interference from other states. In short, as Wendt and Friedheim point out,
sovereignty is about rights, and in this instance, the rights of states. (Wendt and Freidheim,
1996)

This view of sovereignty suggests a duty of non-intervention. If states claim a right to make
their own internal decisions unmolested, then they have a duty to allow other states to do
the same.(Vincent, 1974, 14) Arguably, it also suggests a principle of territorial integrity; the
proposition that states can do what they want within their own territories seems to suggest
that others should not attempt to take parts of their territory away. 1 Finally, many believe
that sovereignty has implications for self-determination and secession. If states have final
jurisdiction within their territories and if they possess territorial integrity, then it might
follow that a minority group within the territory does not have the right to challenge that
jurisdiction or to seek change in the territorial boundaries of the state through secession.
This is a contentious question to which I shall return later.

Most scholars and practitioners would accept these propositions about sovereignty, non-
intervention, and territorial integrity as an orthodox or conventional or traditional view of
the question, even though it was not achieved fully until the post-World War II era. There
was very little theorization or contestation around the concept of sovereignty during the
Cold War, because traditional interpretations were taken as fact.

The dominant theoretical approach of the era was rationalism, and in particular realism.
Structural realists argued (and argue) that international relations is about relations between
states and that states are functionally identical. As such, the questions of why states are the
way they are, what rights they have, where those rights come from, and how these have
changed over time were irrelevant. There was no need to consider the concept of
sovereignty. It was a given,2 a point of departure for consideration of how states interact
within the structure of international relations.

Part 2a

However, the “traditional” conceptualization of sovereignty and its subsidiary and related
concepts is comparatively recent.3 As E.H. Carr put it: “Few things are permanent in history;
and it would be rash to assume that the territorial unit of power is one of them.”

In the European medieval era, the notion of sovereignty as we understand it was not
present. The politics of Europe was organised hierarchically in terms of feudal obligation and
a theological understanding of order and legitimacy. Jurisdictions were not exclusive; they
overlapped territorially and functionally across the European space. (Bull, 1977, 254)There
was no clear demarcation of what was inside and what was outside. (Ruggie, 1986, 142-3)

In the late Middle Ages, the emergence of free cities and the consolidation of large
monarchies began to draw this complex web of overlapping obligation and jurisdiction into

1
  In this context, the ICJ ruled in 1986 that territorial integrity was a logical aspect of political
independence.(ICJ, 1986).
2
  Or, as Barkin and Cronin (1994, 108) put it, “a necessary constant.”
3
  This is a common observation in constructivist critiques of the “reification” of sovereignty (Barkin and Cronin,
1994; Bartelson, 1995; Biersteker and Weber, 1996b, Glanville, 2010; Reus-Smit, 2001). It also happens to be a
correct observation.
                                                                                                                 2
question. The Protestant Reformation, moreover, challenged the religious legitimacy of the
medieval status quo. The trend towards recognition of sovereign authority was carried
forward into the Peace of Westphalia in 1648. However, the establishment of absolute
authority was not complete. The Treaties of Westphalia included numerous provisions
concerning the treatment of minorities in signatory states. And the major theorists of the
sovereign state of the period, Bodin and then Hobbes both argued that the absolute power
of monarchs was limited by divine and natural law principles. In this sense, absolute
monarchy was not absolute.

What about the other parts of the package? As you will recall, one was the principle of non-
intervention. This principle was not clearly stated in law until Vattel did so in his mid-18th
Century work. Legal specialists (Vattel, Grotius), however, generally accepted that states
had a right, and possibly a duty to intervene when a monarch was inflicting massive
suffering upon his people.(Hurrell, 2007; Jackson-Preece) The qualification of absolute
sovereignty carried with it a qualification on the principle of non-intervention.

The practice of intervention over subsequent centuries was uneven. There were few cases
during the 150 years or so after the Westphalia agreements. But compliance broke down
with the French Revolution in 1789. The other major powers of Europe waged war against
France in order the change its internal structure – to restore the monarchical order. France
reciprocated by seeking to transform Europe as a whole in a republican and national
direction.

After the Congress of Vienna in 1815, Austria-Hungary, Prussia, and Russia established an
alliance the major purpose of which was to prevent the spread of liberalism in Europe, if
necessary through intervention in the internal affairs of states. These practices were
justified by Prince Metternich as follows: in the face of domestic unrest in a neighbouring
country, “the right to intervene belongs as clearly and indisputably to every government
which finds itself in danger of being drawn into the revolutionary maelstrom, as it does to
any individual who must put out a fire in his neighbour’s house if it is not to spread to his
own.” (Holsti, 1992, 28)

Turning to territorial integrity, I suggested earlier that sovereignty might imply a
commitment to respect the recognized territory of other states. But respect for territorial
integrity in a sovereign states system is only one logical possibility. The other is that
sovereign states can do what they want with respect to the territory of other states,
because they are sovereign. In this context, James Murphy makes a useful distinction
between systemic sovereignty and anarchical sovereignty in his account of the historical
development of the Westphalian system. Systemic sovereignty suggests that states accept
the territorial settlement as part of their understanding of sovereignty. Anarchical
sovereignty suggests they don’t.4

There were periods, such as 1648-1740 and 1815-1854, when the institution of sovereignty
was deemed to include an agreed territorial settlement. There were also periods (such as
1740-1815 and 1854-1918) when sovereignty implied nothing about territorial integrity.
During these periods, sovereign states were at liberty to make war to take territory.

4
 Barkin and Cronin (1994, 109) note a similar oscillation with respect to territoriality and explain it in terms of
prevailing norms of legitimation (state versus national sovereignty).
                                                                                                                      3
(Murphy, 87-89). And the victorious powers in major systemic struggles such as the
Napoleonic Wars distributed territory among themselves afterwards. (Barkin and Cronin,
1994, 118-9)

One normative development bears mention here, as it plays a significant role in later parts
of this lecture. That was the emergence of the principle of uti possidetis juris5among the
Latin American states in the early 19th Century. The newly independent former Spanish and
Portuguese colonies agreed that they would accept the territorial/administrative divisions of
the imperial period as the basis for the continental territorial settlement.

Finally, there is the question of self-determination. This is related to the issue of who or
what is sovereign. For much of the 150 years after Westphalia, monarchical sovereignty was
considered to be absolute and rooted in divine right and dynastic principle. This
understanding of the locus of sovereignty came into question first in political theory, for
example in the work of Thomas Hobbes, John Locke, and Jean-Jacques Rousseau. In
different ways, all of them took the view that sovereignty resided originally in the people
and was delegated to rulers in a metaphorical contract.

This emergent understanding poses several questions. One obvious question is: who are the
people anyway? Are the people a collection of rights-bearing individuals, as Locke would
have it? Or are they an organic unity – the nation – as Rousseau might define it? This is an
important question because the first idea does not link peoplehood to some notion of
natural or historical territory. The rights of individuals can be satisfied in many different
political structures (unitary, federal, confederal, and so on). However, plausibly, the right of
a nation means sovereign statehood and territoriality.

Another question was: what happens if, in the eyes of the people, the ruler or the state is
violating the contract? Is there a right of rebellion? Bodin and Hobbes denied this. Locke
appears to have believed it. This right was claimed by the 13 colonies in America in 1776,
and, again, by the French revolutionaries in 1789.

A third question was: what happens when there are many distinct groups within the same
state or empire and some do not want to be there. In the 19 th Century, the emerging
doctrine of popular sovereignty merged with that of nationalism, the notion that the nation
is the principal focus of individual loyalty and that the national collective has the right to
determine its own affairs. So, did the recognition of the sovereignty of nations imply a right
to secession when they were contained within states not controlled by them?

A fourth question was what happens when the members of a conscious national group are
spread across a number of sovereign states? Here the effort of the nation to determine
itself involves not secession, but aggression and amalgamation. Much of the instability of
Europe’s territorial settlement in the mid- and late 19th Century involved “nations” trying to
match national identity to sovereign territorial statehood at the expense of neighbouring
states. The unification of Italy is one example. Prussia’s successive wars against Austria,
Denmark and France to slice off pieces of territory, bringing together the German Reich, is
another.

5
 The principle suggests that, in the case of newly independent states, their territory should match that of the
previous dependent territory. See, inter alia, Zacher (2001); Hensel, et.al. (2006).
                                                                                                                  4
My final point in the pre-20th Century discussion is that everything I have said thus far
concerns the European states system, and its offshoots in the Americas. In other places,
after some initial hesitation (Vitoria) Europeans considered themselves to be at liberty to do
what they wished with regard to existing states outside Europe. Generally this involved
colonization of one form or another. Where colonization did not occur, as, for example, in
the Ottoman Empire, China, Thailand, Ethiopia, Liberia, it was because the great powers
balanced each other, leaving no room for one of them to finish the job. The disagreement
between Russia and Britain over the Ottoman Empire in the mid-19th Century is a case in
point.

In general, it was clear that whatever the rules of sovereignty were in the European states
system, they did not apply to non-European peoples and polities. In other words they were
not universal.6

Part 2b

I would like to move now to a discussion of the 20 th Century. Several elements of this history
are very significant in establishing what we understand to be the conventional
interpretation of sovereignty and its related concepts. The sovereignty norm was reasonably
well established within Europe by this time. This trend was assisted by the gradual
displacement of divine and natural law by positive law in the international system. By the
end of the 19th Century, there were also few remarkable instances of intervention.

However, the early years of the 20thcentury clearly suggested that the principle of territorial
integrity was not generally accepted in practice. The 1911-1913 Balkan Wars were in
considerable measure about the distribution of territory in the region. Although the origins
of World War I are complex and largely power-political, the war aims of France, Germany,
and Russia included territorial redistribution. The secret diplomacy of the Entente powers
during the war envisaged transfers of territory. The Treaty of Brest-Litovsk implemented
territorial change.

The other element of war-time diplomacy concerned national self-determination. During
the 1st World War, there emerged a major power seemingly devoted to the implementation
of this right through the creation of new states based on national identity. In a famous
speech to the League to Enforce Peace in May 1916, Woodrow Wilson declared “We believe
… that every people has a right to choose the sovereignty under which they shall live.” (as
cited in Starovoitova, 1997, 17) He followed up in his 14 points in 1917, and attempted to
implement this principle in the negotiation of the Peace of Versailles, which included the
Covenant of the League of Nations.

The Covenant is important as a legal document for several reasons. First of all, it asserted in
law what the states system came to understand as a conventional interpretation of
sovereignty and non-intervention. It made clear that territorial integrity was also a rule in
law. As Article 10 stated: “The Members of the League undertake to respect and preserve as


6
  However, Glanville (2011), drawing on Gong (1984) rightly notes that the colonial powers did recognise
responsibilities to improve their colonies and their colonial subjects on the basis of a standard of civilization.
                                                                                                                     5
against external aggression the territorial integrity and existing political independence of all
Members of the League.”

The right to national self-determination was not explicitly included, largely due to the
resistance of the British and French. However, the settlement created or recreated
numerous states, such as Poland, Czecho-Slovakia, and Hungary on the basis of national self-
determination. Likewise, it made provision for the transfer of territories populated by
minorities from one state jurisdiction to another either directly (as with the Austrian
territories of Istria and Trentino to Italy) or on the basis of referendum (as in Silesia,
Schleswig-Holstein and Saarland).

Many of the norms in the League Covenant were repeated in the 1933 Montevideo
Convention, which endorsed non-intervention, the non-use of force, peaceful resolution of
disputes, territorial inviolability and the non-recognition of territory acquired by force.
(Montevideo, 1933, Articles 8,10,11).

On the other hand, the period supplied numerous examples of violation of these norms in
state practice.The Entente powers, along with Japan and the United States, intervened in
Soviet Russia in 1918-1922. Soviet or Comintern agents were heavily involved in
revolutionary activity in Hungary and Germany from 1918 to 1923, as well as in China from
1924 to 1928. Later, the fascist powers and the Soviet Union intervened on opposite sides in
the Spanish Civil War.

Concerning national self-determination, Soviet Russia embraced the principle within the
Russian Empire and recognised the sovereignty of the Baltic Republics, Georgia, Finland and
Poland. However, a year or so later, Russia violated Georgia’s sovereignty, occupied and
then extinguished the first Georgian Republic. In 1935, Italy swallowed Abyssinia. In 1939,
Germany and the Soviet Union agreed to divide up Eastern Europe. They then violated their
treaty arrangements with Poland, attacked and occupied it, and split it. The Soviet Union
followed by absorbing the Baltic Republics and attacking Finland in an attempt to take a
large chunk of Finnish territory.

The treatment of Czecho-Slovakia, meanwhile, highlighted the possibility that international
understandings of human rights, and in particular the right of self-determination, could be
used instrumentally by states to violate the sovereignty and territorial integrity of their
neighbours. The Germans justified their claim to Sudetenland in terms of the Wilsonian
principle of self-determination.

Part 2c

The unhappy interlude of World War II produced another effort to clarify these normative
questions. The UN Charter provides definitive endorsement of our cluster of concepts as
traditionally conceived. In so doing, it played a crucial role in establishing the conventional
meanings I discussed earlier. Article 2, paragraph 4, embraces sovereignty, non-
intervention, and the use of force in one go: “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.” Article 2, paragraph 7 prohibits the United Nations
from intervening in domestic jurisdiction, although recognising that UN Security Council
action under Chapter 7 was an allowable exception.
                                                                                              6
On the other hand, it also embraces self-determination and the promotion of human rights
as central purposes of the UN.

Subsequent regional accords repeat this juxtaposition, endorsing all four concepts without
paying a great deal of attention to the potential contradiction between them. In fact,
several major normative documents of the Cold War period hardened the contradiction by
further clarifying normative meanings. For example, by the 1960s, the new post-colonial
Third World majority in the UN sought to strengthen the prohibition on intervention. The
Assembly adopted declarations in 1965 and 1970 explicitly defining and prohibiting
intervention in the affairs of sovereign states.(UNGA 1965, 1970) Meanwhile the
International Court of Justice declared that no state had a right to intervene in another and
that intervention was a manifestation of a policy of force that had no place in international
law. (ICJ 1949)

The meaning of territorial integrity was also clarified by the near-consensus among post-
colonial states and among the developed powers on the principle of utipossidetis. The Court
also played a role here.In resolving a dispute between Burkina Faso and Mali, it argued that
“*Uti possidetis] is a general principle, which is logically connected with the phenomenon of
obtaining independence, wherever it occurs.”(ICJ, 1986)

Finally, the principle of colonial self-determination had been qualified both by the League
and also in the UN Charter’s chapter on Trusteeship in terms of whether colonial peoples
were prepared for sovereignty. The General Assembly ruled out such qualifications in it
Declaration on the independence of colonial peoples (UNGA, 1960). Henceforward, there
could be no justification for delaying or denying colonial self-determination through
independence .

The other major question arising in the post-World War II period was that of human rights.
Growing international concern about rights was largely a product of the Holocaust, and the
first major postwar transgression of state sovereignty on human rights grounds was the
Nuremberg Trials, where the victorious allies imposed individual international criminal
responsibility for the actions of state officials in Germany. Meanwhile the Convention on the
Prevention of Genocide arguably authorised intervention to stop mass killing within the
jurisdiction of a sovereign state.

I have already noted that the UN Charter embraced the right of self-determination of
peoples. It also acknowledged the promotion of human rights more generally as a purpose
of the institution. This was followed by the General Assembly’s adoption of the Universal
Declaration of Human Rights in 1947. Although not binding, the Declaration specified a wide
range of individual rights to be commitments of the membership. Rights imply duties, and
the bearers of the duties were the states members of the United Nations. These duties
rested in the first place with each member state in respect of its citizens. However, the
Declaration left open the possibility that if a state was not fulfilling its duty, the matter was
one of legitimate international concern. The organization, in short, was outlining a set of
potential limits on sovereignty.

This was confirmed with the adoption about twenty years later of the International
Covenants on Civil and Political Rights and on Economic, Social, and Cultural Rights (UN

                                                                                               7
1966/1976 a and b). Some regional organizations went further. For example, the Council of
Europe established a European Court to hear appeals from individuals who had exhausted
national legal remedies.

In short, there were two normative (and legal) trends relevant to our subject in this period.
One was the universalization and hardening of pluralist norms of sovereignty,
nonintervention, and territorial integrity. The other was a strengthening of liberal norms
concerning human rights, and, in particular, self-determination. These implied a
conditionalization of sovereignty and raised questions about intervention and territoriality.
But nobody cared much about the obvious contradictions among these principles. The
system was dominated by bipolar rivalry, spheres of influence, and peripheral competition
for marginal advantage between the two poles.

The practice of major states during the Cold War indicated weak acceptance of strong
sovereignty rules. Soviet conduct in its sphere of influence in Eastern Europe illustrates the
point. While accepting the broad international consensus on a strict norm of sovereignty,
the USSR apparently had no cognitive difficulty in qualifying that norm in its sphere through
the Brezhnev Doctrine.

The principle of non-intervention was frequently violated – the Soviet intrusions into
Hungary and Czecho-Slovakia come to mind, as do American actions in Guatemala, Cuba
and the Dominican Republic. The pattern of French intervention in its former colonies in
Africa provides a further example.

The principle of territorial integrity fared better. One of the more striking aspects of the
history of the Cold War era was the near absence of any alteration in the territorial
settlement. Equally striking is the implication for the norm of national self-determination.
The system greeted efforts at self-determination of minorities through secession coldly. The
Nigerian Civil War is a case in point. State boundaries were fixed by the principle of uti
possidetis. The only major exception to this pattern was the emergence of Bangladesh out
of East Pakistan in 1970.

What do we learn from this long historical discussion? One thing is that the sovereign
territorial state is a comparatively recent political form. It would be a mistake to view it as a
permanent feature of world order. Second, principles of non-intervention and territorial
integrity are even more recent. And for much of the modern period, they have been weakly
followed in state practice. Third, for the last couple hundred years this cluster of norms
related to sovereignty has existed in tension with a growing emphasis in the international
system on the right of self-determination of nations or peoples. The problem is obvious:
enforcement of sovereignty and territorial integrity may deny the principle of equal rights
and self-determination of peoples, and vice versa.7

Part 3

I would like to turn finally to the post-Cold War period. I have suggested that the somewhat
contradictory normative development of the Cold War was held in check by the bipolar
structure of the system. Once the structural overlay was removed, there was more scope for

7
 Barkin and Cronin (1994, 108) observe in a related vein that: “[I]t is impossible to completely satisfy the statist
and nationalist principles simultaneously.”
                                                                                                                   8
contestation. In addition, the collapse and fragmentation of the USSR and the Federal
Republic of Yugoslavia provoked critical questions about all of our concepts.

Concerning the implosion of the USSR, the other great powers strongly favoured the survival
of a reforming Soviet Union, rather than its fragmentation. Once the union republics went
ahead and declared their independence anyway, the obvious issue was: why stop there? If
the self-determination of Russia was to be recognised, then why not Chechyna? Or Crimea?
Or the Gagauz in Moldova, the Armenians in Karabakh, or, for that matter, the Ossetians in
Georgia? The question of recognition in the former USSR was made easier by the consensual
character of the dissolving of the union and by the immediate acceptance of the principle of
uti possidetis by the successor states. (CIS, 1991, Article 3)

Yugoslavia was a different matter. Here the dissolving of the federal republic was by no
means consensual, and the principle of uti possidetis was rejected by Serbia. The level of
international confusion was well illustrated by the Conference on Yugoslavia’s query to the
Arbitration (Badinter) Committee on several key elements of our subject:
       -Was the Yugoslavia situation one of secession or disintegration producing successor
       states?
       -Did Serb minorities in Bosnia-Herzegovina and Croatia have the right to national
       self-determination?
       -Were the existing republic frontiers now international borders?

These two situations, as well as that of state collapse in Somalia and Cambodia, and the
attack on Iraq in 1990-91 combined with the growth of constructivist critiques of realism’s
ahistoricity and asociality in the late Cold War period to produce an “explosion” of scholarly
interest in sovereignty, criticizing the traditional perspective on our subject, and
emphasizing its historical contingency and changeability over time. (Biersteker and Weber,
1996b, 1) Another line of doubt about the relevance of sovereignty and the state arose as a
result of globalization, in terms of trade and financial exchange, and increasing
communication and transparency.

International practice in the post-Cold War period shows great variation. In 1992, faced with
the collapse of the Somali state, the United Nations Security Council defined the
humanitarian crisis within a member state as a threat to international peace and security
and endorsed an intervention into the domestic jurisdiction of Somalia to ensure the
delivery of humanitarian assistance. This occurred without the consent of the Somali state.

In 1995, a UN-mandated intervention ended the civil war in Bosnia-Herzegovina and
enforced a confederal solution, despite the alleged preference of the Serb minority to
secede and to join their kin-state This was an apparent violation of the right to self-
determination. In 1999, NATO, acting without a UN mandate, went to war with Serbia over
Kosovo, forcing Serbia to cede control over the region to international administration. This
constitutes an apparent enforcement of the right of self-determination, but also a violation
of the principle of non-intervention.

Ten years later, most NATO and EU member states recognized Kosovo as a sovereign state.
That arguably constituted implementation of the norm of self-determination (although only
of Kosovo’s majority), but also a violation of the norm of territorial integrity. A minority
within NATO and the EU joined Russia, China, and many Third World states in refusing
                                                                                            9
recognition, forcefully restating the traditional norms of sovereignty and territorial integrity,
and rejecting the human rights and human protection logic of the Western coalition.

In contrast to the belated forcefulness of the response in Yugoslavia, in Rwanda the United
Nations responded to warnings of the possible outbreak of genocide by ignoring them.
When genocide began, the Security Council withdrew the bulk of the UN peacekeeping
force then present in the country, leaving Rwanda’s Tutsi minority to be literally chopped up
by government death squads. As the genocide ended, the Security Council supported the
deployment of a French intervention force mandated to protect human beings at risk.
Ironically, the principal impact of the French protection operation was to ensure that the
leaders of the genocide and their followers escaped.

In the Southern Caucasus, Western states supported the national self-determination of the
republics of Armenia, Azerbaijan, and Georgia. However, in line with the principle of uti
possidetis, they supported Georgia and Azerbaijan in their opposition to self-determination
claims by the Armenian majority in the Azerbaijani region of Nagorno-Karabakh, the Abkhaz
minority in Georgia’s Abkhazia and the Ossetian majority in Georgia’s South Ossetia.

In Russia’s August 2008 war against Georgia, the Russian government reversed its
normative/legal position in the Kosovo case, embracing the “responsibility to protect” 8 logic
to justify their invasion of Georgia, after which they detached and then recognized the
breakaway territories of Abkhazia and South Ossetia. The bulk of international society
supports Georgia in refusing to recognize the breakaway territories on grounds of
sovereignty, non-intervention, and territorial integrity.

The twenty-year long effort to resolve the conflict between Armenia and Azerbaijan over
Azerbaijan’s Nagorno-Karabakh region remains stalled, Azerbaijan hewing to the territorial
integrity norm and the Armenian residents of the region, supported by the government of
Armenia, embracing a version of the principle of national self-determination.

Next door, the Russian eradication of secessionist groups in Chechnya has been greeted
with silence at the UN, and in the diplomacy of Western states. The same silence greets
China’s repression of the Uighurs in Xinjiang. Both China and Russia strongly maintain that
what they do in these unfortunate places is a matter of sovereign right and nobody else’s
business.

Elsewhere, the collapse of Somalia produced two territories (Somaliland and Puntland) that
demonstrate some evidence of effective statehood and who want out of Somalia’s hollow
shell. However, there is no significant support either in Africa or in the wider international
community for their effort at self-determination through secession, even though one might
reasonably ask what they are seceding from.




8
 This phrase was coined by the International Commission on Intervention and State Sovereignty (ICISS). See
ICISS, The Responsibility to Protect (Ottawa: International Development and Research Centre, 2001). Available
at: http://www.iciss.ca/pdf/Commission-Report.pdf. Accessed 29 August, 2011). In 2005, the United Nations
General Assembly embraced a version of the “responsibility to protect” in its Summit Outcome Document. See:
UNGA, 2005 World Summit Outcome Document (NY: UN, 2005), paragraphs 138-139.
http://unpan1.un.org/intradoc/groups/public/documents/un/unpan021752.pdf.
                                                                                                          10
In contrast, in July 2011 Africa welcomed its newest independent state, Southern Sudan.
Here there was separation with the consent of the parties, although the Sudanese
government got its arm twisted along the way, particularly by the United States. Finally,
concerning Libya, the UN Security Council mandated international military action to halt
abuse of civilians by the incumbent government. The humanitarian interveners interpreted
that as a mandate for regime change. Russia, China, South Africa and others were critical,
referencing sovereignty and non-intervention.

To summarise this post-Cold War experience, in some cases, the supposed norms of
minority self-determination and remediation trump those of state sovereignty and
territorial integrity. In other cases, it is the reverse. In some cases, the principle of non-
intervention wins over the emergent norm of protection. In other cases, the norm of
protection supersedes the principle of non-intervention. Which one wins clearly has little to
do with the level of repression. Different states adopt contradictory positions in different
cases. In some cases, action occurs with the backing of the Security Council under Chapter
VII; in others states act alone or in groups without Security Council mandates; in still others
they do not act at all. Finally, some states exploit these international norms instrumentally,
as a justificatory basis for actions taken on the basis of their perception of power-political
interest. In short, the record of post-Cold War practice suggests considerable confusion and
disarray.

Turning to normative and legal developments, again I shall start with sovereignty. The most
significant development of the period was the gradual retreat from the more or less
absolute conception of sovereignty characteristic of the late Cold War era. In the face of
state fragility, state failure, and frequent state mistreatment of portions of their own
populations, the UN gradually moved towards the qualification of sovereignty. As early as
1992, the Secretary General wrote that sovereignty was no longer absolute, if it ever had
been. (Boutros-Ghali, 1992). Over time, and in view of mass killings in Rwanda and in
Srebrenica, many began to accept that the right of sovereignty was enjoyed by states to the
extent that they accepted and implemented their responsibility to protect their populations.
International bodies might have a duty to undertake this responsibility in place of the state
if the state was either unable or unwilling to it. (ICISS, 2001)

This leads directly to the principle of non-intervention. The notion of the responsibility to
protect carried the implication that outsiders could, with appropriate authorization,
intervene in the internal affairs of states to prevent or to end massive assaults on human
beings, with or without the consent of the state in question.

It bears mention that these two trends met with considerable opposition from Third World
states, as well as Russia and China, who preferred to retain the previous understandings of
the principles of sovereignty and non-intervention. However, successive Security Council
resolutions on the protection of civilians in war (UNSCR, 1999, 2000) suggested the
emergence of a general principle in this area, while in 2005, the General Assembly (UNGA,
2005, paragraphs 138, 139) endorsed both the responsibility of states to protect their
citizens and, if they failed to do so, the responsibility of the international community to step
in.

Concerning the principle of territorial integrity, there was no significant development in its
main content: states were prohibited from using force to take territory from other states
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and change in the territorial status quo required the free consent of the states involved. The
issue of whether the principle of territorial integrity prohibited secession is more
interesting. As the ICJ ruled in 2010, nothing in international law prohibits a people within a
state from declaring their secession. (ICJ, 2010)

This brings us quickly to the question of self-determination. One reason for the shift from
the principle of national self-determination to that of the self-determination of peoples in
the UN Charter was that the self-determination of peoples could be accomplished without
territorial change, with the obvious exception of decolonization. The Badinter Commission
followed this line of reasoning in its opinions on Yugoslavia in 1991-2, arguing strongly for
uti possidetis as a general principle of international law and for the self-determination of
minority peoples within successor states through appropriate minority protections.
(Badinter, 1991, opinions 1 and 2)

The Supreme Court of Canada (1998) came to a similar view in an influential opinion on the
question of Quebec secession. In their view, international law concerning the self-
determination of peoples through independence focused on decolonization, cases where a
people was subject to alien subjugation, domination or exploitation, and cases where a
people were denied the exercise of their right to self-determination within the state where
they lived. Where the political and economic rights of minorities were being satisfactorily
respected and promoted within the confines of existing states, there was no presumption in
international law that they should have the right to secede.

The Kosovo case brings in one other dimension. The Independent Commission on Kosovo
suggested in 1999 that the invasion of Kosovo was illegal but legitimate. Since then, many
people have been trying to line up legitimacy and law through the development of a
doctrine of remedial secession. That is, secession might be permitted (and intervention to
secure secession also might be permitted) in the event that there was no prospect that a
people could meaningfully and safely exercise their right to self-determination within the
confines of the state in which they lived, and when they had been subject to repeated and
massive abuse of their rights and persons. (Caplan, 2010, 3; Bolton and Vysotka, 2010, 5).
The state opinions in the 2010 Kosovo case suggest that this is moving beyond academic
speculation and into the positions taken by states as subjects of international law.

Part 4

In considering normative dissonance, my colleague Andrew Hurrell wrote recently that
“Conflict is, after all, intrinsic to all morality, and even within a single cultural system
conflicts arise: how different principles are to be related to one another; how shared
principles are to be related to the facts of a particular case.” (Hurrell, 2007, 40)

This is true. But there are different degrees of conflict. Some conflicts are more damaging
than others. This normative conflict appears to be growing more severe over time as a result
of the removal of systemic power-political constraints. It is contributing to wider
unpredictability in the international system. A reasonable degree of clarity on which
behaviours are generally accepted and which are not contributes to international order. A
degree of order is, in turn, a precondition for justice. There is no neat resolution of
competing principles of states’ rights and peoples’ rights. The challenge is to find a middle
way to give as much scope as possible to the justice claims of self-determination without
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fatally undermining the order value of sovereignty. The conflict could be managed more
effectively if certain basic principles were followed.

Concerning sovereignty and rights, one way to resolve the tension is contained in Article 2.7
of the Charter and in paragraphs 138 and 139 of the UNGA Summit Outcome Document
(2005). The notion that the sovereign rights of states are qualified by their responsibility to
behave in ways that are internationally acceptable towards their people, as we have seen,
has been around as long as the sovereign states order.9 The Charter embodies this notion.
On the one hand it embraces sovereignty in its prohibition on attacks on the political
independence of states. On the other, it qualifies sovereign rights by permitting Security
Council action within the domestic jurisdiction of states if the Council identifies a threat to
international security. So the UN has the authority to violate sovereignty.

The Summit Outcome Document explicitly recognises the role of states in protecting their
people. But it also gives the UN the authority to act in the event that states fail in their
responsibility to protect. In normal circumstances, sovereignty is primary. In exceptional
circumstances, the authority of states is secondary to the responsibility to protect human
beings. That seems about right.

It follows that, under normal circumstances, intervention is prohibited. In exceptional
circumstances, it is permitted. Those circumstances would involve events within a state
reaching or crossing a threshold of massive violation of rights, and massive civilian fatality.
The right to define this threshold belongs to the Security Council. This puts the threshold
rather high. The likelihood that a consensus on intervention among the permanent
members would be achieved in the absence of egregious violations of the rights of human
beings is low. That seems about right too.

This leads to a point concerning right authority. States do not have a right in law to
intervene in the affairs of other states. The Security Council has that right. So the right
authority is the Security Council. Given the propensity for states to instrumentalise human
rights as a justification for hostile acts against other states, unilateral intervention on
humanitarian grounds should not be permitted in law. This is not ideal, since the permanent
members of the Security Council frequently disagree on the authorization of intervention. In
such situations, action may not be forthcoming. Or compromises among the five may
weaken mandates rendering them ineffective.

One way around this problem is to permit regional organizations to address such problems,
on the principle that some multilateralism is better than pure unilateralism. Chapter 8 of the
Charter calls for action by regional arrangements to manage regional security issues, subject
to authorization by the Security Council. It is probable that Security Council approval of
regional operations developed by organizations in the region would be more
straightforward than approval of UN peace enforcement from outside the region. The
problem here is that in some cases regional associations are dominated by single powers
and may operate as an extension of that power’s foreign policy. (MacFarlane and Weiss,
1992)


9
 A number of scholars (Hurrell 2007, 42; Glanville, 2010) have noted the similarity between the responsibility
to protect as a condition on sovereignty with 19 th Century notions of a “standard of civilization.”
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Concerning finally the issue of territorial integrity as it is related to minority claims for self-
determination through secession, the weight of legal and political opinion seems sensible on
this issue. Territorial integrity should normally be respected in such situations. In law,
minorities have a right to recognition of their identity and to determine their affairs within
the boundaries of existing states. (e.g. Badinter, 1991-2) States have a duty to protect
minority rights within their jurisdiction. International organizations (both regional and
universal) have responsibilities to foster compliance with the principle of minority
protection.

Where a minority has a kin state, it should have the possibility to develop cultural relations
with the kin state. The kin state should be allowed to develop these relations with its kin
minority in the other state. However, these relations should proceed with the agreement of
the host state and should not include policies that undermine the host state’s sovereignty.
These are difficult questions, but to my mind they have been very concretely and effectively
explored in the Bolzano Recommendations of the OSCE High Commissioner for National
Minorities.10 The question of remediation through secession arises only when it is clear that
the state is unable or unwilling to do its job in protection and promotion of minority rights
and when international efforts to secure state compliance have clearly failed. Again, given
the presumption in favour of territorial integrity, the threshold should be high.

To conclude, what are the central points? As noted already, the meanings of the concepts I
have been discussing are not fixed and objective; they change and evolve in different
historical circumstances. During the Cold War there wasn’t much argument over them. In
the post-Cold War era, there is substantial normative contestation in both and the positions
of states. States are no longer very sure what their rights are or what to expect. The
normative ambiguity characteristic of the period can be and has been instrumentalised by
states for their own purposes. The lack of normative clarity is undermining predictability and
stability in the system. Although it would be foolish to expect these different moral
principles to be harmonized completely, it is possible with a bit of thought to achieve a
greater degree of consistency than exists at the moment. That would be a good idea.




10
  The recommendations suggest that although a state may have an interest in the welfare of a kindred minority
in another state, “[t]his … does not entitle or imply a right under international law to exercise jurisdiction over
people residing on the territory of another state”; that “states should refrain from taking unilateral steps
including extending benefits to foreigners … that have the intention or effect of undermining the principles of
territorial integrity” and that they “and should refrain from conferring citizenship en masse even if dual
citizenship is allowed by the state of residence.” HCNM, 2008)
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