Sovereignty Conflicts and
International Law and Politics
A Distributive Justice Issue
By Jorge E. Núñez
© 2017 – Routledge
Abstract
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.
Keywords
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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