Territorial Disputes in the Americas blog series. Post 14: Sovereignty and self-determination

 

Sovereignty and self-determination

To better understand what a territorial dispute is we have to be familiar with basic vocabulary used in law, politics and international relations. Two key words must be introduced: STATE and SOVEREIGNTY. That is because in all territorial disputes we will have at least one STATE claiming exclusive SOVEREIGNTY over a territory.

International public law offers a definition in article 1 of the Montevideo Convention of Rights and Duties of states (1933) that declares:

“The state as a person of international law should possess the following qualifications: a) a permanent population; b) a defined territory; c) government; and d) capacity to enter into relations with the other states.”

In tune with this definition the Oxford Dictionary of Law says:

“to qualify as a state the entity must have: (1) a permanent population […]; (2) a defined territory […]; (3) an effective government.” Martin, Elizabeth A. and Law, Jonathan, ed. 2006. A Dictionary of Law. Oxford: Oxford University Press.

Therefore, a STATE has three key elements:

TERRITORY

POPULATION

GOVERNMENT (and LAW)

In very simple terms, that means that in principle:

1. Territories without people cannot be a state.
2. People without territory cannot be a state (e.g. Tibetans).
3. A group of people living in a territory without a government (independent from any other source of law) cannot be a state (e.g. Catalonia).

I include a video below of one of my talks (I explain the concepts of state, sovereignty and self-determination and their relevance in relation to territorial disputes).

These three elements (territory, population and government) require one specific characteristic to be considered a fully fleshed state. What is that characteristic? It is SOVEREIGNTY.

There are many definitions of SOVEREIGNTY. A current and comprehensive definition of SOVEREIGNTY says:

“[Sovereignty is] a Supreme authority in a state. In any state sovereignty is vested in the institution, person, or body having the ultimate authority to impose law on everyone else in the state and the power to alter any pre-existing law. […] In international law, it is an essential aspect of sovereignty that all states should have supreme control over their internal affairs […]” Martin, Elizabeth A. and Law, Jonathan, ed. 2006. A Dictionary of Law. Oxford: Oxford University Press.

Bringing these two concepts together: STATE and SOVEREIGNTY we have that a SOVEREIGN STATE is a group of people (POPULATION) who lives in a piece of land (TERRITORY) and has a common government EXCLUSIVELY able to create the highest law for them in that land.

Therein, there is a territorial dispute when more than one government (or group of people) aims to EXCLUSIVELY have sovereignty over the same territory.

Are sovereignty and self-determination at odds?

At first glance, sovereignty and self-determination seem to be at odds. While sovereignty centers on the state, self-determination focuses on people. Self-determination may jeopardize one of the elements that integrates a sovereign state, such as territory by giving preeminence to another element such as population. In this view, self-determination compromises the public international law principle of territorial integrity.

Consequently, territorial disputes often include situations such as Catalonia, in which at least part of the population of a sovereign state wishes to have a different government and, therefore, divide the territory; or cases like Gibraltar and the Falkland/Malvinas Islands where populations are in a legal and political limbo because they wish to exercise self-determination while a sovereign state denies them that right; or disputes like Kashmir, where populations under the sovereignty of one state wish to exercise self-determination and join another one.

This is a misunderstanding because sovereignty includes limitations and, therefore, can embrace cooperative arrangements that may imply solutions other than dismemberment of the territory. In a similar vein, self-determination may lead to solutions other than secession. In order to make these points clear and demonstrate how sovereignty and self-determination are not necessarily opposed, the next post explores self-determination in law and politics.

NOTE:

This blog series introduces, explains and assesses issues pertaining territorial disputes in the Americas including law, politics, culture, history and religion. There will be new posts every Monday, Wednesday and Friday.

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https://london1701.blogspot.com/2025/01/territorial-disputes-in-americas-blog_10.html

NEXT POST:

Self-determination

AUTHOR’S SAMPLE PEER-REVIEWED ACADEMIC RESEARCH (FREE OPEN ACCESS):

State Sovereignty: Concept and Conceptions (OPEN ACCESS) (IJSL 2024)

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AMAZON

ROUTLEDGE, TAYLOR & FRANCIS

Monday 13th January 2025

Dr Jorge Emilio Núñez

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