Land Forces Academy Review Vol. XXIII, No 3(91), 2018 SOVEREIGNTY, A SWINGING CONCEPT BETWEEN INTERNATIONAL LAW AND POLITICAL REALITY Anca DINICU “Nicolae Bălcescu” Land Forces Academy, Sibiu, Romania [email protected] ABSTRACT The State, as the fundamental unit of the international system, appeals to ultimate power and authority in order to control its own domestic affairs and claims equality as a legal basis regarding its relation with other legal political units. But the existence of the sovereign state in the current international context, where the multiple interdependencies generate divergence and cooperation in the same, is subject to permanent challenges. And the issue is not easy approachable in theory, nor in practice. Like other concepts, as security or democracy, the concept of sovereignty needs to be updated according to the new rules revealed by the process of globalization, rules that are defined not by the equal states, but by the powerful ones. KEYWORDS: international law, international relations, recognition, sovereignty. 1. Introduction granted by the international community As an independent entity, the State is with its confidence that the factual criteria defined by reference to three elements: a of statehood have been fulfilled indeed. fixed territory on which the state exercises its functions; a permanent population, 2. Methodology located within the national boundaries; and The paper aims to address the issue of a government through which the state puts state sovereignty in the field of international into practice its sovereign power with the relations, where states, although theoretically ultimate scope of regulating people’s living equal among themselves, are hierarchically on its national territory. But according to ranked according to their national the Montevideo Convention (1933), which performances which are eventually converted had put the state in relation to the into power at the international level. It is international law, besides these three analyzed, based on exploring the existing elements there is a fourth one needed to be literature in the area of interest and with the taken into consideration – that is the help of direct observation, how the “capacity to enter into relations with the independent and sovereign states are able to other states” (The Montevideo Convention, integrate themselves into the international article 1). Thus, the statehood issue is political context. In this respect, it was closely connected with the idea of necessary to have the concept of sovereignty recognition meaning that, in order to clarified, taking into consideration the become integrated at the international level transformations and challenges of the as a legal standing entity characterized by international security environment at the st rights and obligations, a state should be beginning of the 21 century. DOI: 10.2478/raft-2018-0021 © 2017. This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivatives 3.0 License. 181 3. The Concept of Sovereignty and “Is a state recognized by other states? Its Historical Roots Is it accepted as a juridical equal? Are Sovereignty is the attribute of the state its representatives entitled to that allows it to independently establish its diplomatic immunity? Can it be a form of government, the relationship between member of international organizations? the executive branch and the legislative one, Can its representatives enter into the social order and the legal system which agreements with other entities?”. are considered to be the most appropriate to The key element is recognition; support the political survival and the ● and Westphalian sovereignty which economic development. This internal “is based on two principles: sovereignty is doubled by an external one that territoriality and the exclusion of allows each state to manifest itself as external actors from domestic authority independent actor having the same range of structures” due to the idea that rights like any other state, no matter how according to the Peace of Westphalia large or small, powerful or weak it is. the domestic political authorities are the But Stephen David Krasner, an only entitled to rule on a specific international relations professor at Stanford territory. In other words, this type of University, sovereignty has not two, but sovereignty is violated when a foreign four meanings or attributes (Krasner, 1999, entity tries to determine or influence the pp. 11-25): existing domestic authority, no matter ● Domestic sovereignty as the ability of a if through intervention or invitation. state to maintain the monopoly of the The key element is nonintervention use of violence within its territory: but the concept has nothing to do with “Domestic sovereignty, the organization the Peace of Westphalia (Emmerich de and effectiveness of political authority is Vattel (1714-1767), a Swiss Jurist, is the single most important question for considered to be the first who defined political analysis”. The key element is the principle of nonintervention, in authority; Droit des gens ou principes de la loi ● Interdependence sovereignty as the naturelle, 1758). “Nevertheless, the capacity of a government to control common terminology is used here the intra-borders movements of any because the Westphalian model has so kind. This attribute is somehow much entered into common usage, even related with the previous one – we are if it is historically inaccurate”. dealing not only with what is Traditionally when the problem of happening on the national territory, sovereignty is approached, academics but also with the state’s incapacity of usually explain it by bringing into attention disciplining all those issues that have the Peace of Westphalia (in 1648) which is emerged from the process of considered to be the starting point of the globalization: “atmospheric modern state existence or as Henry pollution, terrorism, the drug trade, Kissinger said “the path breaker of a new currency crises, and AIDs” (and, of concept of international order that has course, the examples might continue). spread around the world” (Kissinger, 2015, The key element is control; pp. 23-24). Based on two treaties signed in ● International legal sovereignty which Münster (between the Holy Roman is brought into discussion when the Emperor and France, along with their status of a political entity in the respective allies) and Osnabrück (between international system is established. the Holy Roman Empire and Sweden, along Thereby a few questions arise: with their respective allies), the Peace of 182 Westphalia recognized the right of each 4.1. Sovereignty and Domestic signatory part to decide in connection with Affairs its own domestic structure and to act freely The state indeed is responsible for from any religious intervention. what is happening on its national territory While some revisionist scholars but this does not mean that it can do what it attacked the two documents, considering wishes or what it considers being proper for them being almost identical and dealing in ensuring a specific government and way of fact with the Holy Roman Empire internal governing, although history is full with of affairs (Osiander, 2001) and not providing examples, including after the Second World the solid elements of the “principle” of War which should have remained a warning sovereignty, the Peace of Westphalia is signal to the consciousness of humanity. considered to be the turning point in the In this respect, a reasonable question arises: history nations being the beginning of the is, for example, mass murder an internal modern international system. issue? Three million people were killed in So, if the state is the most important Cambodia (1975-1979) under the Pol Pot international actor then, obviously, regime, and other 800.00 were massacred in sovereignty, as a concept but also as a Rwanda in 1994. matter of putting into practice the national Anyway, it seems that today the interest in the international context, has a internal sovereignty is under the pressure key role in understanding the theory of generated by the globalization process, international relations and also in being forced to adapt itself at a new reality explaining the international affairs. – the national economies are dominated by But what is, in fact, sovereignty? It is the private enterprises and are being influenced state’s full right to enforce the ultimate by transnational trends and phenomena; the power and authority within the boundaries civil society organizations have a great of its national territory and to act as an desire and willingness to get access at the independent entity on the international decision making process; the international stage, according to its national interest. human rights law is spread all over the world; the communication and 4. Adapting the Concept of transportation advances are evident and Sovereignty to Nowadays Political available for more and more people; the Reality state itself not only that has become more The above mentioned definition and more resourceless, being forced to should be considered in general terms. cooperate with private entities, but through The contemporary international legal mechanisms part of its sovereign system is subject to the most various rights can be transferred to a supranational transformations due to the process of organization (like the European Union). globalization which implies integration and This means that the internal sovereignty is interdependence. It means that even