Saturday, 18 November 2017

BOOK [Abstract and General Structure] "Sovereignty Conflicts and International Law and Politics"

Sovereignty Conflicts and 

International Law and Politics

A Distributive Justice Issue

By Jorge E. Núñez

© 2017 – Routledge

We are used to seeing and accepting as fact that in one territory there is one population governed by an ultimate authority, with a common legal bond or system of norms. What would happen if that one territory and population had two ultimate and hierarchically equal sovereigns (legally speaking) and, at the same time, two valid sets of norms? Would it be possible, for instance, that Israel and Palestine had sovereign authority at the same time over Jerusalem? Would it be possible that Argentina and the United Kingdom were at one time sovereign over the territory and population of the Falkland/Malvinas Islands? What about Russia and Ukraine having the same degree of sovereign power over Crimea? 

There are many cases that can be characterised as sovereignty conflicts in which international agents claim sovereign rights for different reasons over the same piece of land. Besides, these conflicts have a particular feature: their solution seems to require a mutually exclusive relation amongst the agents because it is thought that the sovereignty over the third territory can be granted to only one of them. Indeed, sovereignty is often regarded as an absolute concept—i.e. exclusive, and not shareable.

In light of this obsession with absolute, long-standing disputes still continue to be presented around the world as a zero sum game, with many negative outcomes of different sorts—e.g. social struggle, bad governance, inefficient exploitation of natural resources, tension in international relations, and threat to local and international peace. Thus, while these conflicts are in principle confined to specific areas and start with negative consequences primarily for the local population, they tend quickly to expand to the regional and—even—the international level—e.g. effects on international price of oil, arms trafficking, terrorism, war.

International relations and legal and political scholarly literature offer various potential remedies that one could use to solve the problem. These include independence, self-determination and free association—to name a few. Although these remedies are useful in certain conflicts, they are futile in several others. Hence, these conflicts remain unresolved and in a legal and political limbo. 

This book offers a fair and just way of dealing with certain sovereignty conflicts by neutralising elements that are responsible for the stagnation of this kind of disputes. Indeed, one of these elements is the historical argument that is intrinsically related to memory and emotion as instruments of national identity. I propose to see these conflicts from a different yet broad. Therein, I view the problem as a distributive justice issue following the work of Rawls. That is because distributive justice principles are a particularly appropriate tool to address sovereignty issues, just as they have previously been applied in assigning rights and obligations in other social institutions. As a consequence, reviewing different theories (e.g. ‘first come, first served’; just acquisition; the principle of equality) may help us to resolve the problem. This book aims to explore if a solution that certainly is desirable can also be possible and may offer a peaceful way of solving sovereignty conflicts through the use of principles of distributive justice.

Absolute Sovereignty, Limited Sovereignty, State Sovereignty, Sovereignty Conflicts, Distributive Justice, Rawls, Malvinas, Falklands, Kashmir, Gibraltar, Jerusalem, Catalonia, Kuril islands, Cyprus, Crimea, Quebec

To evaluate the potential for using principles of distributive justice to resolve certain kinds of sovereignty conflicts, the monograph is divided into three Parts. The First Part—i.e. Chapters One and Two—includes discussion on two preliminary potential pitfalls to this project that is the use of Rawlsian methodology and the use of the concept of ‘sovereignty’. Chapter One, the Introduction, presents some simplifying assumptions and the basic elements that constitute this study and in particular goes through the critical discussion on Rawls methodology in order to justify its application here. Chapter Two will address a key task in developing the new approach: to examine if the concept of ‘sovereignty’, which is assumed by many to be absolute, can be (and in fact, actually is) limited. This Chapter follows two lines of analysis: a) conceptual; and b) historical. 

The Second Part—i.e. Chapters Three, Four, and Five—introduces and explores the current state of affairs in international law and politics in terms of conceptual elements and potential remedies to sovereignty conflicts. Chapter Three will focus on assessing the need for a revised ‘shared sovereignty’. This and similar expressions have been used in the political and legal literature before. However, its meaning remains tangled, with specific real cases or national and international agendas making it difficult to be applied to different realities. It is for that reason this Chapter will review different ways in which this concept (in various versions or conceptions) and similar ones have been previously applied in legal and political scholarly literature. Chapter Four will examine self-ownership as a way to define sovereignty. More precisely, if it can be established that sovereignty may in theory be limited and the need of a revised ‘shared sovereignty’ the next step will be to evaluate how sovereignty can be shared—i.e. how a State can limit itself by sharing its rights and obligations and still remain sovereign. Therein, this Chapter will assess the concept of ‘sovereignty’ in parallel with the concept of ‘self-ownership’. That is because by using an analogous concept such as self-ownership that implies supreme authority but yet accepts limitations it becomes clearer how limitations can work in another supposedly supreme concept such as sovereignty. Chapter Five highlights the main remedies applied at international level to sovereignty conflicts and will explore each in order to determine whether any of them could be a reasonable solution to the sovereignty conflicts object of this project. What this Chapter will argue is that there is a need for a reasonable solution that the reviewed international remedies cannot offer.

The Third Part—i.e. Chapters Six, Seven, and Eight—will explore the use of Rawlsian methodology in order to put a solution to certain sovereign conflicts, and discuss if the outcome is a reasonable remedy for them. Chapter Six will introduce and explore: a) the conditions for achieving justice—toleration, peace, etc.; b) why the ‘just acquisition’ principle may not work; and c) why the Rawlsian method of conceiving of the respective claimants as behind a ‘veil of ignorance’ just might. The latter is of utmost importance as the analysis will be conducted under these circumstances; that is, in an original position in which the three representatives will be in a particular situation, both in regard to their particular circumstances and that of the original position itself. Chapter Seven will test the proposed model by working out what sorts of institutions and arrangements could, and would best, realise it. In order to do that this Chapter will make use of some sovereign conflicts to show that the model can be extended from the general principles to workable institutions that realise those principles in: a) population; b) territory; c) government and law; and d) all that they imply (e.g. defence, natural resources, financial system). Finally, Chapter Eight will conclude by assessing the model’s potential and highlighting any possible limitations and implications. 

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