Africa, Sovereignty and International Law

analysis

Photo: U.S. State Department
An overview of the 50th anniversary African Union Summit in Addis Ababa, Ethiopia, as seen on May 25, 2013.

Sovereignty was not simply a creation between European peoples, but something that governed relations between Europe and the rest of the world.

Sovereignty provides a formal basis for interaction between nation states. A sovereign is the highest domestic authority within its own system, and the international community consists of sovereign states that are formally equal.

But beyond a few central principles, conceptions of sovereignty - upon which international law rests - have undergone a considerable transformation over the past few centuries.

And it is not the neutral term that its common usage implies. Sovereignty is not solely a European invention that was extended and exported; its origins are mired in encounters with the rest of the world - a history of subjugation. This article will seek to identify key turning points in its evolution, comparing and contrasting various classic and contemporary qualities, in order to provide the necessary context in which to understand current projects in international law.

I - CLASSICAL CONCEPTIONS OF SOVEREIGNTY

The Peace of Westphalia in 1648 is often cited as the source of modern sovereignty and modern inter-state relations. It oversaw the passing of a system of treaties that were designed to ensure peace - a reaction to the religious wars that had devastated Europe for 30 years previously. These treaties entailed more than a simple ban on religious war; they set up a framework of principles to govern the limits of acceptable behaviour between nations based on this new conceptualisation of sovereignty.

i) Sovereign characteristics

As a starting point, each sovereign has absolute power within its own territory with respect to its own people. Interference in the sovereign affairs of a state is a violation of international law. The International Court of Justice (ICJ), the principal judicial organ of the United Nations (UN) asserted in the 1986 case between Nicaragua and the United States that the principle of non-intervention forbids all states to intervene directly or indirectly in internal or external affairs of other States:

"A prohibited intervention must accordingly be one bearing on matters in which each State is permitted, by the principle of State sovereignty, to decide freely. One of these is the choice of a political, social and cultural system, and the formulation of foreign policy. Intervention is wrongful when it uses methods of coercion in regard to such choices, which must remain free ones[1]."

How is this domestic supremacy upheld in the realm of external relations, especially in a society of sovereign nations? As Article 2(1) of the United Nations Charter states, all sovereign states are equal[2]. Whatever the real disparities in power, influence and wealth between states, all states, from a legal perspective, are formally equal.

These positions are rendered more fully by the prohibition on the use of force against the "territorial integrity or political independence of any state[3]", stated in Article 2(4) of the UN Charter. The concurrent right of a state to self-defence, arguably its most fundamental right, is stated in Article 51 of the UN Charter.

Within this formal equality, a sovereign state is generally bound by international law only if it can be shown that the sovereign state has consented, either explicitly or implicitly, to the particular law in question. The requirement of consent outlines a further stipulation of sovereignty.

International institutions such as the United Nations are created by sovereign states, which enter into a treaty that outlines the governance structure of such an organisation, its powers and functions and rules of membership. Further, it is only by virtue of the consent of a state that any international tribunal, such as the International Court of Justice, exercises jurisdiction over that state and rules on the legality or otherwise of its behaviour.

While sovereignty may be sketched out in terms of these broad principles, many complex issues arise about the application and consistency of such principles. A state that enters into a treaty is in effect surrendering or delegating some of its sovereignty; it does so in the expectation that it will benefit as a result, much as an individual would surrender some of her autonomy to enter into a contract from which she will benefit. A surrender or delegation of sovereignty is seen, under international law, as part of the exercise of sovereignty[4]. This classic model of sovereignty has been profoundly challenged by a number of developments discussed below, such as the emergence of international human rights law, globalisation, and the 'war on terror'.

II - SOVEREIGNTY, AFRICA AND THE NON-EUROPEAN WORLD

Modern international law was developed not just between Europeans but as a product of their involvement in the rest of the world. Its beginnings can be traced back to the sixteenth century and the Spanish conquest of the "New World", where the idea of sovereignty was used to justify Western imperialism.

Whereas the classic model of sovereignty is built upon the principle that all sovereign states are equal, a study of the history of international law reveals that for the past few centuries, sovereignty was enjoyed exclusively by European and the later Western states, and that the historical disempowerment of African and Asian societies could have enduring consequences that extended to the present.

International law can be seen then as having two dimensions, one intra-European and the other extra-European, and it is only by appreciating both realities that we may better understand international law and its operation.

This dual character of international law is further suggested by the fact that the great seventeenth century Dutch jurist, Hugo Grotius, who is generally regarded as the founder of the discipline for his great work The Rights of War and Peace, was also the lawyer for the Dutch East India company, and many of his works were written to justify the colonial expansion of his employer.

i) Colonialism

By the nineteenth century, Western international lawyers read into the concept of sovereignty a requirement that ignored all cultural sensitivities: a standard of civilisation. This disadvantaged all societies that were not created in the image of the West. And so international lawyers determined that African societies lacked sovereignty because they failed to meet 'the standard of civilisation' that any entity claiming to be sovereign had to comply with. Asian states too fell outside this margin.

Consequently, African societies, denied of sovereign status, could not participate in the making of international law, but were nevertheless bound by it - as international law sought to bring the light of reason and civilisation to Africa. It became an object, but not a subject of international law.

The exploitation of Africa in the nineteenth century was initially conducted by trading companies-purporting to act on behalf of European states - such as the British East African Company and the British South Africa Company, which were deemed to possess sovereign rights.

The most dramatic example of Africa's status in international law at the time is provided by the Berlin Conference of 1884-1885. The signatories of the Berlin Conference - none of which were African - proclaimed themselves to be animated by the grand ideals of promoting humanitarianism, civilisation and commerce in the Congo region.

Under the guise of designating the Congo basin a "free trade area", a number of powerful European states regulated the "Scramble for Africa", redrawing Africa's borders according to the interests of these leading external powers. However, these new boundary lines lacked any regard for realities on the ground and effectively divided African societies, which found themselves occupying different colonial states.

Notably, "civilisation and commerce" were regarded as completely complementary projects: it was through the promotion of trade - here understood as the exploitation of Africa's natural resources - that the great cause of civilisation could be advanced. A proper system of organisation and governance had to be established in order to enable the flourishing of commerce. Since African societies were incapable of providing such governance, Western intervention in the form of colonialism was viewed as essential.

What followed revealed the hollowness and hypocrisy of such proclamations. The Conference effectively granted control of the Congo to Leopold II of Belgium and it is estimated that between 4 and 8 million Africans were killed during his reign.

ii) Decolonisation and the New International Economic Order

In the progression of sovereignty, some of its exclusiveness has been jettisoned but other aspects of it have been used to maintain an unfair status quo.

The process of decolonisation and nationalist struggles conducted throughout Africa and Asia resulted in the acquisition of sovereignty. These states, which had been denied of their sovereignty for so long, were understandably intent on affirming the importance of their newly won sovereignty and the principles of equality, non-aggression and non-intervention[5].

African and Asian states attempted to use the newly found sovereignty they had acquired to change an international legal system that they had played no role in creating, and which indeed had acted against their interests. For instance, these "new states", attempted to regain control over their own natural resources.

They sought to bring about this change by using their numbers in the UN General Assembly to pass a series of far reaching resolutions that were directed towards creating a "New International Economic Order". The creation of such an order was vital for African states if they were to make economic progress and promote development. African nationalist leaders, such as Ghana's Kwame Nkrumah, realised that political sovereignty was only meaningful if accompanied by economic sovereignty.

From a legal point of view, however, these efforts were confronted by a basic problem: under international law, no state can be bound by a law unless it has consented, either implicitly or explicitly. This was an essential principle of the system of international law, and Western scholars argued that, in becoming sovereign and entering the system, the new African states had in effect agreed to abide by its rules.

Thus, despite the fact that principles regarding permanent sovereignty over natural resources were endorsed by the vast majority of states in the world, they were not binding on Western states which refused to accept them. This left in place the older principles, which were made in colonial times and which the Western states claimed were binding on the new states despite the fact that the new states had played no role in creating them. Most of the initiatives undertaken by Asian and African states, then, were unsuccessful.

III - HUMAN RIGHTS

The emergence of international human rights law after the Second World War profoundly challenged conventional ideas of sovereignty - particularly the idea that a sovereign state has absolute authority within its own territory with respect to its own citizens.

Tragic events, such as the Holocaust, demonstrated the inadequacies of this model - the international community could not remain passive while a country slaughtered its citizens. The international legal system responded by establishing the system of international human rights law. This shifted the focus from merely states in an international system to a focus on the rights of the individual and a complex web of treaties initiated by the United Nations is now in place to protect international human rights, illustrated by the important role that human rights played in the international action against apartheid South Africa. Nevertheless, the state was still the primary enforcer for a range of human rights, mainly because they still depend on sovereign consent and will.

IV - A MORE PERMEABLE SOVEREIGNTY

In the age of globalisation, sovereignty has become more permeable than ever, but it is impossible to speak decisively on its trajectory - some of its original precepts have been eroded, others have been intensified. Several recent phenomena will show that as some of the rigid exclusivity has been jettisoned, others hold meaningful continuity in a state of flux.

i) Humanitarian intervention and International Criminal Justice

As a result of tragedies such as the genocides in Rwanda and former Yugoslavia, humanitarian intervention became a dominant topic in human rights discourse.

Under the United Nations Charter, humanitarian intervention - multilateral intervention to save the citizens of a state - is illegal, a violation of Article 2(4) of the Charter prohibiting the use of force, unless this use of force has been authorised by the Security Council[6]. However, political differences within the Security Council often result in the use of a veto, and stultify the passing of resolutions.

A great deal of scholarship and diplomacy has been devoted to the question of formulating a set of principles that would allow humanitarian intervention while at the same time preventing the abuse of that concept for self-interested purposes by powerful states. The concept of 'Responsibility to Protect' (R2P) has been presented as an alternative that is based on a reconceptualisation of sovereignty.

The basic argument is that sovereignty, rather than being seen in traditional terms as a "right" should be seen as a "responsibility" - a responsibility of the sovereign to protect the well-being of its people. If the sovereign fails to do so, then responsibility to protect devolves to the international community.

A precise outline of the concept and the legal implications that follow from it have yet to be worked out. For instance, the issue of who decides whether a state has failed to meet its responsibilities is still open to abuse. Similar concerns have been raised about the operation of the International Criminal Court. Taken together, these developments simultaneously provide an extra layer of protection for the individual but also make up part of something scholars are treating with suspicion - the possibility of "an evolving interventionist toolkit".

ii) International Economic System

The dynamics of colonialism have created enduring structures that continue to affect the lives of the people in Africa. The initiatives of the international financial institutions, such as the World Bank and IMF, promote Western principles of "good governance", spreading their own neo-liberal agenda to the rest of the world. This is eerily reminiscent of the nineteenth century mission to promote "commerce and civilisation"- the dual mandate famously articulated by Lord Lugard, the first British Governor-General of an united Nigeria.

Globalisation is not simply about unfettered development, it has led to the intensifying interdependence of states due to specific financial rules. The emergence of international economic systems operated through institutions such as the World Bank, International Monetary Fund and World Trade Organizations often puts states under enormous pressure to accept the economic policies, legal systems and structural reforms outlined by such institutions in order to not be excluded from all the benefits that globalisation is supposed to provide.

African states in particular, since the 1980s onwards, have accepted far reaching structural adjustment policies that have been authored by the IMF and the World Bank, and that have had an immense impact on the everyday lives of their people. In many of these cases, the states, which were suffering from existing economic problems, some of which could be traced to their colonial heritage, may have felt they had no real choice in the matter. Multinational corporations, with turnovers larger than many small states and promising investment, possess immense powers that contend with sovereign states.

This has led many states to ignore fair labour laws and bow to decisions that the idea of sovereignty cannot protect them from. It is only in more recent times, with the global financial crisis, that the West itself has come to question the system of globalisation, which it has been instrumental in creating. Sovereign states, even the most powerful sovereign states, no longer seem to be in control of the complex financial markets that so profoundly influence the well-being of peoples everywhere.

iii) War on Terror

The "Global War on Terror" has raised another set of questions about the status of sovereignty in contemporary international relations, and the extent to which a sovereign state is justified in the actions it can take to protect itself. This unique war has involved action against "failed states" - Somalia is often cited as an example - and "rogue states". The basic idea here is that while certain states may be nominally, legally sovereign, they are not capable of performing the duties of sovereignty because, for example, of a breakdown in their system of government. As they are not properly sovereign, any action taken against them is therefore not an infringement of sovereignty or a violation of international law.

The broad attempt here is to challenge the idea that all sovereign states are equal on the basis that distinctions should be made depending on the internal governance structure of a state. Thus, "democratic states" are more sovereign than "non-democratic states" or certainly, "rogue states". While this argument has been widely discussed and may animate foreign policy and diplomacy, it has no basis in international law.

V - CONCLUSION

Many have been quick to pronounce globalisation as the disintegration of sovereignty - some schools of thought take the world's increasing interconnectedness as signs of a world without borders. However, sovereignty still remains the legal doctrine which legitimates actions in international law.

It is hoped this article has shown that the focus on moving from one side of the good/bad binary is not always helpful and that it needs to be examined as a whole. If one looks primarily from the point of awarding sovereignty, it has become more inclusive. Yet the pronouncement of a forgotten chapter - the role of sovereignty in colonialism, its role in highlighting the vertical as well as horizontal aspects of sovereignty and establishing an unjust status quo - should highlight parallels between past ages and our current one.

Projects such as the economic order, which have promised a wider pool of resources for countries to deal with, have ignored the relative starting positions of their bargaining powers. Universal projects of ICC justice and humanitarian intervention, which pierce the principle of non-intervention, are not being applied universally.

African institutions, governments and societies have taken important steps to use the resources of international law to devise new regimes - whether in the form of African Human Rights systems, or the novel mechanisms embodied within the African Union Charter which permits the African Union to authorise intervention in another African country in order to prevent atrocities.

Importantly, international human rights norms have been embodied in the constitutional systems of various African countries, and the courts that have interpreted these norms have made significant contributions to international jurisprudence. In these different ways there are encouraging signs that Africa is now becoming more of an author of international law than simply following its script.

For more information about the course please read our introductory blog post.

FURTHER READINGS:

Obiora Chinedu Okafor, Critical Third World Approaches to International Law (TWAIL): Theory, Methodology or Both? (2008) - available at http://waynemorsecenter.uoregon.edu/files/2012/10/Okafor.pdf

Makua Mutua, What is Twail? (2000) - available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1533471

Balakrishnan Rajagopal, International Law from Below (2003)

QUESTIONS TO CONSIDER

1. What privileges and behaviour does sovereignty enshrine? Where is this elaborated in the UN Charter?

2. What were the challenges facing the New International Economic Order?

3. What was Africa's first interaction with European international law?

4. How has sovereignty changed and how have its relationships of power been affected?

[1] Case Concerning Military and Paramilitary Activities in and Again Nicaragua (Nicaragua v. United States) 1986 I.C.J. 14 (June 27) at para. 205.

[2] UN Charter, Article 2(1): 'The Organization is based on the principle of the sovereign equality of all its Members'.

[3] UN Charter, Article 2(4).

[4] As famously stated by the Permanent Court of International Justice in a decision handed down in 1923, 'the right of entering into international engagements is an attribute of State sovereignty' S.S.Wimbledon (U.K, France, Italy, Japan, Germ.) 1923 P.C.I.J., (Ser.A) No.1

[5] See eg. the Final Communique of the Asian-African Conference, Bandung (Apr. 24 1955).

[6] This is to simplify a complex debate. Some scholars argue that humanitarian intervention is legal under international law.

Professor Anghie teaches at the University of Utah S.J. Quinney College of Law faculty.

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