CHAPTER 6: STATE SOVEREIGNTY AND HUMANITARIAN MILITARY INTEVENTIONS
6.3 State Sovereignty, From Westphalia to the United Nations
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and capacity (notably the treaty-making power, the capacity to be held liable, and the capacity to become a member of an international organization)” (Peters, 2009: 516). One can also add that such rights bring the duty to reciprocate the same to other states in the international system. This gives the state the right to claim non-interference in its internal affairs as an inalienable right (Snyman, 2006: 5).
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… The member states of the Holy Roman Empire were granted full sovereignty.
The ancient notion of a Roman Catholic empire of Europe, headed spiritually by a pope and temporarily by an emperor, was permanently abandoned, and the essential structure of modern Europe as a community of sovereign states was established.
This assertion is supported by Masahiro (undated) who says that:
Before the Thirty Years’ War, which was partly a religious war, the European world of Christendom was largely a diarchic one of Pope and Emperor. But as a result of its defeat, the Holy Roman Empire was dissolved into hundreds of relatively independent authorities with more or less equal sovereignty over their populations and territories, which theoretically marked the birth of the modern nation-State system.
In 1648, in Westphalia, former belligerents agreed to peace through the treaties of Osnabruck and Munster popularly termed the Peace of Westphalia. Apart from changing the geographical and legitimacy of sovereigns in Europe, the peace also ushered in a new era of quasi-religious tolerance (Straumann, 2008: 179-180). The peace can therefore be seen as a precursor to the UN Charter on the issues of rights. Apart from the political separations of the role of the church and the state, the Westphalian agreements signified the victory of the European Princes to be in control of small territorial units under their diverse views than to be bundled in a universal ‘Catholic’ system which non-Catholics viewed as oppressive to their free thinking and religious choices.
The above assertion is supported by Morgenthau (2006: 317) opines that the formulation of state sovereignty in the sixteenth Century meant the rise of a territorial state that centralised power for law making and law enforcing within its territory. This power continued to increase in the span of centuries to become supreme. He noted that:
By the end of the Thirty Years’ war, sovereignty as supreme power over a certain territory was a political fact, signifying the victory of the territorial princes over the universal authority of emperor and pope, on the one hand, and over the particularistic aspirations of the feudal barons, on the other (Morgenthau, 2006: 317).
The Peace of Westphalia carried on as the referral of state sovereignty until the signing of the UN Charter.
The Charter reinforced and transformed some of the rules that had governed the so-called ‘civilized world’ to suit the post WW II situation from 1945. When leaders of victorious powers (led by Britain, France, Soviet Union and USA) met to discuss the creation of the UN, they did not think of any better way to keep trust between nations more than what the peace of Westphalia had brought. The UN Charter,
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therefore endorsed the Westphalian state sovereignty concept. According to Article 2 (1) of the UN Charter, “The Organization is based on the principle of the sovereign equality of all its Members”.
It can be argued that the WW II was caused by the trampling of the Westphalian state sovereignty concept by leaders with unbridled ambitions like Adolf Hitler of Germany. Creators of the UN and drafters of the Charter were aware of this and might have found it necessary to reinstate state sovereignty as one of the main principles of the UN system.
However, the new UN Sovereignty concept had some slight differences from the Westphalian concept.
While in the Westphalian conceptualization of sovereignty, wars of conquest, especially against those leaders and lands considered barbarian and not part of the civilized world were countenanced (Orachelashvili, 2006: 319), the UN concept of sovereignty altered that practice to be out of sync with the new obtaining system (Donnelly, 2004: 15). For instance, in 1884/5 European colonial powers partitioned Africa without its consent and presence at the Berlin conference and moralized the use of force in the occupation process. The UN was influential in dismantling this European colonial order that was moralized under the Westphalian system. The UN Charter categorically stated in Article 2 (4) that,
“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, or in any other manner inconsistent with the Purposes of the United Nations”, while stating in Article 51 that, “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security.” The UN therefore limited sovereignty to internal rights to regulate behaviour in a state and limited any state from interfering and seeking to aggressively control other states through the use or threat of force and aggression.
The UN system has been a unique system. The international organisation came up with a raft of treaties, besides the Charter, that sought to buttress respect of state sovereignty. However, the UN system has not only been interested in enforcing absolute state sovereignty but also to “encourage” member states to respect human rights (UN Charter Article 1 (3)). Unlike the Peace of Westphalia which was concerned more with the Kings and Princes in Europe, the UN system has equal concern for the states and the peoples, with the states being seen as the representatives of the collective will of the peoples as seen by numerous reference to the word “peoples” from the opening statement “We the peoples of the United
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Nations” and throughout the preamble, while states are categorically stated as the members of the organization.
Hence, while it has been noted earlier on that there was the dominance of the Realists influence in the formulation of the concept of state sovereignty and its subsequent infusion into the UN Charter, the interpretation of the charter at the end of the 20th Century can be read as an attempt to dismantle the old order in line with the influence of the International Society paradigm. The development in information and communication technologies that managed to broadcast through various media pictures of atrocities and the failure to deal with some of the horrendous atrocities in Africa and Europe particularly Rwanda and Srebrenica massacres has influenced some world leaders to challenge the classical conceptualization of state sovereignty. As noted under the paradigm of the International Society that states should observe rules and as noted by the Solidarists school of thought that HMI is now a moral imperative, leaders like Annan (1999) (2012) and Blair (1999) explicitly called for a conditional sovereignty based on observance of human rights and a duty to protect the citizens. The interpretation of the UN Charter, therefore is now being revised on a tremendous extent.