2.6 The Sovereignty Game
2.6.3 Authority: The Effective Exercise of Sovereignty
We have seen that recognition of sovereignty is important, but it only represents one aspect of sovereignty, and even if a state enjoys international recognition of its sovereignty over a territory, this does not mean that it enjoys the actual direct application of this sovereignty.
This leads us to the other half of sovereignty: authority. The ability to exercise authority over a disputed territory is basically the ability to exercise sovereignty over it. The exercise of sovereignty forms the basis of the legal principle of effective control, which – in the absence of an authoritative treaty – is the primary principle in the jurisprudence of international law.
Furthermore, obviously in the absence of arbitration, exercising sovereignty is exercising authority: it is in effect controlling the territory, even if the sovereignty remains legally incomplete.
Thus, a crucial part of the sovereignty game is the ability to exercise sovereignty over the disputed territory, as well as the corollary of this: the ability to prevent others from exercising sovereignty. But before going further into the ways in which states deploy the exercises of sovereignty – and their prevention – to further their position in the sovereignty game, we must first outline what an exercise of sovereignty actually is and do so specifically with an understanding of exercises of sovereignty over disputed island territories. The formal
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legal definition of an exercise of sovereignty is narrower than the legal one – for example, in ICJ jurisprudence, maps cannot indicate territorial title unless they are attached to an official text which are expressions of the will of the state or states involved (Prescott and Triggs, 2008: 203). Yet, as has already been elucidated, the sovereignty game is constituted by both law and politics; therefore, states act in ways which are not strictly ‘legal’ but which are informed by law.
The exercises of sovereignty which are of interest to this dissertation are specifically those which relate to disputed island territories. They include any state actions which refer to the disputed territory, and can, depending on the context, be affected not only by the state in the traditional sense (that is to say, not only by the central government), but also by substate actors, which can include citizens, private groups and subnational governments.79 Ultimately, an exercise of sovereignty in the sovereignty game takes place when both sides recognise it as such, and thus a simple test as to whether a state or other body’s action is an exercise of sovereignty or not is whether the other state lodges a protest in response. Obviously not all exercises of sovereignty carry the same weight. The extent to which an exercise of sovereignty makes a difference to the sovereignty game is itself part of the game, as discussed below, but first let us list some examples of exercises of sovereignty as related to this dissertation:
Construction of state infrastructure on the disputed territory or within its EEZ
Government statements proclaiming sovereignty over the disputed territory
The exercise of criminal jurisdiction over the territory
79 These exercises of sovereignty are substantially weaker in nature than direct state exercises.
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Conducting marine scientific research in the territory’s adjacent waters80
As we saw in the previous section, one of the ways an exercise of sovereignty can be recognised is the response to it: do the other claimants protest or acquiesce? In order to lodge a legal protest, a state merely has to lodge a formal protest. However, the extent of the political protest takes us to the critical issue of the effect of the exercise of sovereignty, and the ability of each state to exercise sovereignty and prevent the exercise of sovereignty by other claimant states; in other words, the relationship between the exercise of sovereignty, the protest or acquiescence, and the position of each state in the sovereignty game, as outlined below.
When a state attempts to exercise sovereignty over a territory, the first question which must be answered is: is this exercise of sovereignty a break in precedent or is it in keeping with the status quo of the sovereignty in the dispute? If the exercise of sovereignty falls within the existing status quo then this does not affect the sovereignty status and thus there is no requirement for any major protest (unless the other state wishes to use this opportunity to alter or reverse the status quo, see below). If the exercise of sovereignty is unprecedented in the dispute – i.e. if the exercise does not fall within but instead alters the status quo – then the other state has two choices: protest or acquiesce. Protest in this instance is not legal protest, though it may include it – acquiescence can take place despite the state lodging a formal legal protest. Rather, a successful protest in the sovereignty game requires taking actions which cause the state attempting to exercise sovereignty to rescind its actions.
This protest involves the use of one or more of the three types of capital discussed below:
80 UNCLOS Article 56.1.b.ii gives the coastal state jurisdiction over marine scientific research in an EEZ. Hydrographic research, however, is a murkier issue, as is the difference between hydrographic research and marine scientific research, and is taken up in both Chapter Three and Chapter Four.
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economic, military and diplomatic; examples include the threat or actual use of force, the recall of ambassadors, or the curtailment of economic ties. If the protest is not sufficient to prevent the exercise of sovereignty, the protesting state has acquiesced. This acquiescence creates a precedent, and once the precedent has been made it can become routinised, making it very difficult to reverse – more difficult than it would have been to protest and prevent the initial exercise of sovereignty itself.
In order to make this clearer let us take an example: State A controls a small island, State B also claims sovereignty over the island. The island is small and remote – State A has never constructed anything more than a small lighthouse on it. State A announces plans to build a base for its coastguard, including a port, buildings, and other necessary infrastructure.
Such an exercise of sovereignty represents a change in the status quo of the territorial dispute:
it would create the precedent that State A can construct state infrastructure on the disputed island. State B, recognising the threat to its position in the dispute, and valuing the disputed territory highly (see below, Section 2.8), decides to use its economic resources. State B threatens to break all economic ties with State A if it proceeds with the construction of the coastguard base. State A takes the threat seriously and reverses or delays the construction plans and so the status quo is preserved; indeed it is reinforced since State A reversed course in the face of the threat by State B, demonstrating the inability of State A to effectively exercise sovereignty over the territory it controls.
A second example can help to elucidate the complexity of the sovereignty game: in this case, a change in the position of both sides in the sovereignty game takes place. Once again State A controls the disputed territory and State B disputes sovereignty. State A begins
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for the first time to conduct maritime scientific research in the waters around the islands.81 State B protests via formal diplomatic channels. State A reiterates that the disputed islands are part of its territory; therefore, the research is of no concern to State B. State B once again protests, threatening to withdraw its ambassador should the research go ahead. State A conducts the research, and State B withdraws its ambassador for a period of a week. The status quo is altered: despite State B’s protests, State A exercised sovereignty in an unprecedented way. The ability of State A to exercise sovereignty over the territory has increased, though by at least withdrawing the ambassador State B has made it clear to State A that the repetition of such an exercise will provoke a consequential response. Still, State B’s protest was incommensurate, that is, it was unable to prevent the exercise of sovereignty from going ahead; State B acquiesced in State A’s exercise of sovereignty.
These two illustrative examples demonstrate how states seek to improve their position in the sovereignty game through attempting to exercise sovereignty or prevent such exercises.
The examples referred to two other aspects of the sovereignty game which have not yet been addressed: the value of the territory to the state, and the resources which the state has at its disposal to play the sovereignty game. It is to these two final aspects of the sovereignty game this chapter now turns.