2015 Elections in Argentina and the United Kingdom. And the Falklands?

With elections on both sides of the Atlantic, we can expect the Falklands to be on the news more throughout 2015. Indeed, Presidential elections in Argentina and General elections in the UK in the months to come. Does it not seem just a little bit too similar to the 1980s dialectic? Both Argentina and the United Kingdom were (and are) going through deep crisis, not necessarily financial ones but social and political. Back in the 80s, it was very convenient for both of them at that time (is it the same now?) for personal and political internal agendas. That is to say, Ms Margaret Thatcher and the Military Junta; Mr David Cameron and Ms Cristina Fernández de Kirchner: the characters seem different. But wait a minute, the play is the same! So it is not that the characters are different but the actors! We are in presence of the same play with the same script played again in the same theatre but now by different actors.

The government of Argentina only knows about either rejecting the Falkland islanders, the British government of, if convenient, the international society and legal order. The British government, sometimes proactive, sometimes reactive. Proactive in inviting the Falkland islanders to ANY negotiations; reactive, to any declaration coming from the Argentinean government.

For a very brief view  of the Falklands’ conflict see the first article of this blog:

Falklands: an Argentinean invention? A British solution? Malvinas: un invento argentino? Una solución británica?

And for a more recent account, see Professor Klaus Dodds’ post:

Hotspot - Falkland Islands

In what if of interest here, Prof Dodd says that:

“In March and April, however, two stories emerged about these islands that make it ripe for coverage. The first involved a parliamentary statement by the Secretary of State for Defence, Michael Fallon, which outlined the findings of a defence review for the Falkland Islands. Citing the risk of Argentine aggression and noting the ‘potential for development of an oil and gas industry’, as well as noting a post-Afghanistan context, the Islands’ military base would be supported by additional helicopters. The communication facilities and air defence systems stationed at Mount Pleasant Airbase are to be upgraded as well. Overall, £180 million has been earmarked for the modernisation of the British military presence.

The second story involved claims via the former NSA whistle-blower Edward Snowden (now exiled in Moscow) that the British government spied on Argentina between 2006–2011 and was intent on infecting Argentine computer systems with viruses and spreading rumour and innuendo in the hoping of discrediting the Argentine government of President Christina Kirchner. At the time of writing, the British government had made no official statement about these allegations but interestingly President Kirchner ordered all the classified Argentine documents relating to the 1982 conflict to be released. She also criticised the British government for allocating further monies to defend the Falklands in the midst of domestic UK austerity.

[…]

While there has been no major oil strike thus far, the UK and Falkland governments are clearly working hard to garner support in Latin America – with an array of trade missions, diplomatic exchanges, cultural visits and military collaboration. Earlier news that Argentina might lease long-range bombers from Russia in return for beef and wheat reminds one of what former UK Prime Minister James Callaghan used to say about ‘dots on the map’ and their capacity to provoke crisis at a proverbial drop of a hat.”

 

But, what do the Argentinean and British electorate think of the dispute? What do Falkland Islanders have to say about it? What do Argentineans think of the Britons and the Falkland Islanders? What do the Britons know about Argentina and the Falklands?

After almost four decades of hearing the story of Falklands/Malvinas from both sides, more than two decades researching the topic, having lived in Argentina and living in the United Kingdom, being in contact with Falkland Islanders, I can tell that, more often than not, the many take their side depending on their nationality or country of origin without really knowing much about what they are referring to. And not only about the Falklands but in regards a culture as a whole: the English are… the British are … (for instance, do they know English and British mean something different? That the Union Jack and the English flag are two different flags?). And on the other side, the Argentineans are… (When did you go to Buenos Aires? Have you been to Mar del Plata? Do you know there are places in Patagonia where people speak and study in both Welsh and Spanish?). And of course, the Falkland Islands: the islanders, those people … has anyone met a Falkland Islander? Has anyone been to the Falkland Islands? Do you know they have families there that work, pay taxes and send their children to school? Yes, they have children too! They are as human being as any Argentinean or Briton.

Media and social media are part of our daily life but they exist as long as we use and/or buy them. Governments come and go. We elect them, they come; we do not vote for them, they go. They’re our representatives; they’re high ranked civil servants, but civil servants. Unfortunately, some of them cannot separate the public side from the private side, and it is then when private, selfish or self-centred interests come into play. So next time we read or listen to a speech, let’s try to have a critical eye and dissociate that what is simply orientated by selfish, one sided interests from that reflecting what population, the people they represent, want.

Why?  Kofi A. Annan, in his ‘Two concepts of sovereignty’ said it clearly when referring to international intervention in humanitarian crises and it’s perfectly applicable here:  “Because, despite all the difficulties of putting it into practice, it does show that humankind today is less willing than in the past to tolerate suffering in its midst, and more willing to do something about it.” (The Economist, 18 September 1999).

It‘s true, we’re either citizens of one or another country. However, we’re far more than that. We’re part of a broader net called mankind. It’s the time to work together. It’s the time to leave behind selfish, self-centred, one-sided policies or speeches. It’s time to address serious issues with serious agendas by mature representatives. All of us, Argentineans, Britons and Falkland Islanders deserve better. 2015 and elections in Argentina and the United Kingdom: we will hear and see about the Falklands again. But, any real, actual solution to the dispute from Kirchner, Macri, Scioli, Cameron, Miliband, Farage or any other? Doubt it…

The Force of Law: Law and Coercion, Validity and Effectiveness, and Synergy

The Force of Law:

Law and Coercion, Validity and Effectiveness, and Synergy[1]

 

JORGE EMILIO NUNEZ

 

Abstract This paper considers the two claims Schauer introduces in The Force of Law. Firstly, the paper seeks to establish that coercion is (a) generally part of the law; and (b) occasionally may be not. Secondly, I intend to demonstrate that despite the fact that the relationship between rules and facts within a normative system could be necessary, sufficient or desirable, in all cases is a synergetic one: they outperform when they work together. Therein, the last section of this paper shows that coercion has philosophical interest in explaining the nature of law since the question whether it is a necessary or sufficient element is irrelevant.

 Available at SSRN: SSRN Link One or SSRN Link Two

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[1] A very early version of this paper “нормативные системы как право в синергии: ДЕЙСТВИТЕЛЬНОСТЬ И ДЕЙСТВЕННОСТЬ” (in English, “Normative Systems as Law in Synergy: Validity and Effeciveness”), Philosophy of Law and State Responsibility, St. Petersburg State University, 2012.

Sovereignty and economy: autarchy [part 2 of 2]

We started this series of posts related to State sovereignty with a sketch [link to article], some conceptual issues [link to article], and now we focus on an element that could go against the institution itself, maybe not at theoretical level but in realpolitik.  Las week we dealt with autarchy, and what it means for a State to be in serious international debt in terms of its sovereignty [link to article].

The key factor that makes these cases diverse is not the fact that the subjects that are part of the agreement are Sates but that the lender and the borrower are usually in very different circumstances. If the agreed conditions are met on time, the lender should expect to receive the “money” centre of the transaction and the respective interest. The situation varies when the borrower is not able to repay the debt.

In national private law there are legal ways so as to constrict the individual, group or company to repay the debt. Even a sanction through criminal law is plausible in extreme circumstances. The law establishes beforehand the consequences of an omission. In International Law the legal scenario is completely different. Although there are some supra-States structures in place in most of the cases their decisions are not compulsory. War and reprisals have been seen for many years in the reality and by legal theorists as a feasible solution when a treaty or agreement is broken. But the current international theatre would not consider reasonable and humanitarian to start a war or execute reprisals against a State and its population. It would not be either considered of etiquette or good practice within the international society that a powerful and wealthy State invaded or attacked a poor and weak pair.

In consequence, it is more than common that due to internal circumstances the third world or non-central State is not be able to repay in full the loan so the first world or central State is granted some concessions such as priority in agreements, areas of exclusive use, exclusivity in exploitation of certain resources, etc. The phenomenon is quite well known in America, especially between the United States of America and the richest States in Central and South America in what has to do with natural resources.

We have said that in order for a State to be sovereign it has to be autonomous. By applying for loans, any given State is trying to reach a balance on its accounts due to internal and/or external deficit. This fact does not alter anything in regards to its sovereignty.

The issue arises when the loan cannot be repaid or in order to do so the lender intends to be repaid in a different way that may potentially mean granting that State with prerogatives over certain part of the territory, population, resources, etc. of its peer.

In this specific situation the “weak” State is “loosing” part of its sovereignty by letting an external authority decide and rule over internal matters. We shall not discuss here why the authorities of the “weak” State follow this course of action (simply because the State cannot repay, corruption, business interest, etc.). The intention here is to highlight that there are international rules that allow States to borrow money in different ways when necessary but the facts can sometimes attempt against the integrity of the concept of sovereignty depending on the form the debt is cancelled.

Is it necessary for a State to be sovereign to have autarchy?

It is indispensable in our opinion. As leading cases, Central and South America have regular instances in which the United States of America act directly within their borders since they are the main lenders in the region. Natural resources exploitation and use of territory for training their army are the most commons “ways of repayment”.

Without intending to make a value judgement with regards the correctness or not of these actions, we want to remind that the focal point here is that one State is letting another State interfere in its sphere of sovereignty simply because it is not autarchic. We leave the political and philosophical debate aside as they are not the reason for this analysis.

For a State to be sovereign is indispensable that the creation and interpretation of law happen in an independent atmosphere free of third party interests.

Last words on the topic.

As agreed, the first part of the definition of sovereignty reads that it is a right to be exercised with autonomy and autarchy.

As a right or prerogative it is part of a subject of law and its personality. In the case of study, it is a prerogative within a State and it is executed by the representatives of such a State.

These representatives must have the independent power of law creation and application (of course, limited by the legal system). They are (and must be) the ultimate authority of this legal system. There should not be any other authority with such a prerogative above them (legally speaking).

Consequently, their actions must not be interfered by internal or external interests, actions and/or omissions.

A State can apply for loans when necessary. Its authorities are able to follow the internal and international procedures to do so. If the loan was repaid, there would not be any concern or issue. On the contrary, if there were problems to repay the loan, the international legal system should be ready to put a procedure in place to guarantee both, the repayment of the loan and the statu quo of the State’s sovereignty.

We shall not discuss in this investigation a method, procedure or institution to achieve this goal as it is not the aim of the project. However, we want to underline the importance a factor as the economy can have (and actually has) in the normative and real independence of a State. Ergo, the implications it has on its sovereignty.

Sovereignty and economy: autarchy [part 1 of 2]

We have already made clear that for a State to be considered sovereign it has to be autonomous (for complete article follow link). One of the aspects that integrate the autonomy of a State is indeed its economy. By autarchy we mean the economic independence a State must have in relation to other States. The fact that a population is not able to meet its needs and has to recur to its pairs, international organization or any other means apart from the internal ones so to achieve a certain balance within its accounts may lead to other consequences analyzed below that could potentially attempt against its sovereignty.

The State creates law for its population. In other words, the designated authorities create and interpret law for the inhabitants of a specific territory. It is part of its sovereign prerogatives to determine what is legal and/or illegal.

One of the aspects that constitute a State is its economy. As part of the whole system, the economy of a State will be also regulated by norms.

To mention some of the elements that form that economic structure of a State we may enumerate a few such as: financial institutions, financial intermediaries, insurance companies, taxes, national and international budget, etc.

“According to political science all the economic institutions of society are determined or at any rate defined by law and are therefore subject to the sovereign authority”[1].

Therefore, the economy of a State and the economic infrastructure that sustains it are directly linked to its sovereignty as its sovereign government through the law creates and shapes every single element that result in forming a State as well as the procedures they are supposed to follow.

Nowadays’ world introduces many realities from States with a strong economic structure to others that continuously depend on international aid from their pairs, the World Bank and/or any other international organization.

Although this States continue being autonomous in the legal sense of the world, factually they are in debt. This situation puts in risk the notion of sovereignty in both, the normative and the real environment.

“The world has become familiar with the problem of sovereignty that arises when this process of decay occurs. […] A time comes when the Government begins to deteriorate. Public spirit ebbs. The people cease to respect their rulers or to hope for any real assistance from them. Facilities for economic development are denied or delayed, or granted subject to impossible conditions. The process of development falls into arrears”[2].

Consequently, we observe that although the economic structure of a State is determined, dictated and created by such a State exercising its sovereignty we think that they are directly and irreversibly interlinked in a reciprocal relation: the sovereign State establish through its legal system the economic structure; however, in order for that State to remain fully sovereign that economic structure must be autarchic.

What does it mean for a State to be in serious international debt in terms of its sovereignty?

It is common that third world States (or more modern, emerging economies) borrow large amounts of money (either in terms of capital or goods). Even developed States do so for very different reasons: simply to cover an overdraft on their expenses, to stimulate trade with a certain area, to create or develop a specific market, so soften bilateral relations with a given pair, etc. The ways or procedures a State may put in place can differ but in general they can be explained as follows:

a) by issuing bonds (national and/or internationally) in order to borrow money from nationals of that State or people, companies and/or any other subject of law abroad;

b) by borrowing money from international organizations such as the World Bank;

c) by borrowing money from another State.

In the first case, the State issues bonds (government or sovereign) at a certain price to be sold to anyone who wants to buy them with the promise to rescue them at a predetermined point in time in the future paying back a specified amount of money. These bonds are bought and sold in the open market and their yield also varies throughout the time they are valid till their maturity date.

The only difference between government and sovereign bonds is that the former are often denominated in the State's domestic currency and the latter in foreign currencies.

The State may decide to “recover” the bonds before the stipulated date and will be able to do so by cancelling them (repaying the holders).

Although this kind of bonds are usually referred as “risk free” (particularly the government’s ones), it can also happen that the State is not able to fulfil its obligations and not repay the holders at any point in the lifetime of the bond (not even at its maturity). This phenomenon is known as sovereign default. The defaulting State and the creditor(s) can renegotiate the terms of their agreement. Moreover, the State itself may modify its conditions (i.e.: length of the bonds lifetime, maturity date, etc.). This of course will directly affect the international credibility of that State in any future similar instance.

The second case follows the same general rules a private bank has when it lends money to individuals or companies. As international financial organizations this institutions focus their activities on making profits through lending money. As any other loan, the State will have to fulfil certain requirements such as to specify the reasons for borrowing the money and agree on a repayment plan and respective interests. Depending on the capacity and punctuality of repayment, the State will have a different credit rating (part of the country risk).

“A country’s power of borrowing abroad will depend partly on its reputation for good faith in fulfilling its engagements, but mainly on its capacity to pay”[3].

If it does not repay the repayment plan will be rescheduled. There is no thing such an international sanction if for whatever reason the State cannot fulfil its obligations. However, its international prestige as a borrower and good faith payer for future loans will be diminished. It may be possible for this State however to be granted a new loan but the conditions will be for sure stricter.

The third type of loan is between States. The conditions will be agreed between the States part on the transaction similarly to any other loan. The usual scenario in third world States (emerging economies) is that they borrow money from a first world State (developed economies) at a certain interest rate.  As far as we can see this would be a normal loan with different subjects than the traditional (States instead of individuals) with all its components: a borrower, a lender, and agreement and money to be borrowed/lent.

We will continue with this topic and how the lack of autarchy may affect sovereign States next Friday.

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[1] Hawtrey, R.G., Economic aspects of sovereignty, Longmans, Green and Co., 1930, p. 3.

[2] Hawtrey, R.G., Economic aspects of sovereignty, Longmans, Green and Co., 1930, p. 55.

[3] Hawtrey, R.G., Economic aspects of sovereignty, Longmans, Green and Co., 1930, p. 90.

Sovereignty: conceptual limitations

We started last week with “a sketch on sovereignty” (link to complete article), the first post of a series of blog articles written for the general public in order to make more accessible a legal and political term that somehow has proven to be rather elusive with regards its actual meaning. Indeed, like any other expression or concept, we will see that its elusiveness has very little to do with its nature but with its interpretation. Thus, in most cases these interpretations have hidden agendas.

It is mainly for that reason that we will be discussing every Friday some relevant issues to untangle this supposedly absolute term and review some assumptions that only act as self-limitations when we think of sovereign States in a cooperative rather than a dysfunctional manner.

In the following we well introduce some conceptual limitations to the term “sovereignty”. The paragraphs are part of an article published by the International Journal for the Semiotics of Law (Springer) and will act as introduction and overview for the posts that will follow every Friday.

“Conceptual limitations have to do with any given term and its application within a certain domain. So, every concept has defining characteristics that makes it somehow limited (contrary to beliefs, assumptions, or justifications). In other words, a concept identifies a particular group of phenomena according to certain criteria. With regard to a concept such as sovereignty these criteria change over time as people’s situations, beliefs, assumptions or justifications change. Furthermore, the criteria writers think they are using are not always the ones they turn out to be actually using when one examines the phenomena and what they say about them. For instance, following a classical definition of the concept that is central to this thesis we find that:

“[Sovereignty is] a Supreme authority in a [S]tate. In any [S]tate sovereignty is vested in the institution, person, or body having the ultimate authority to impose law on everyone else in the [S]tate and the power to alter any pre-existing law. […] In international law, it is an essential aspect of sovereignty that all [S]tates should have supreme control over their internal affairs […]”

Martin, E. A. and Law, J., ed. 2006. A Dictionary of Law. Oxford: Oxford University Press.

Evidently, there are many other definitions of sovereignty that can be quoted. Nevertheless, we can already see with this classical definition that there are several notions related to sovereignty: supreme authority, institution/person/body, inward and outward view, power, and so on. Indeed, this myriad of notions makes sovereignty a complex concept. That is because as a word, ‘sovereignty’ has the same linguistic difficulties any other language unit has (ambiguity, vagueness, open texture as per Hart’s classification). Is that the only problematic presented by such a concept? To answer the question affirmatively would be over-simplistic (or over-optimistic); contrary to that, not only has this particular word the same linguistic issues any other term may potentially have, but also possesses specific characteristics that makes it valuable yet highly complex. It is a multi-faceted term with influence in politics, law, and many other areas with several conceptual implications in all of them. We have thereby to focus our attention first on the analysis of some of these conceptual implications—i.e. the ones that are linked to this thesis.

There are indeed many conceptual issues we may consider when referring to State sovereignty. I will mention some of them below. The aim here is solely to make evident how a concept that is at first thought to be absolute presents several characteristics that show something different. Some of these conceptual issues include:

·                Confusion between supreme and unlimited or absolute authority and how different sorts of limits—e.g. internal, international, religious—relate to the concept of sovereignty.

·                Whether sovereignty is a form of authority or power or both.

·                The related distinction between de jure and de facto sovereignty.

·                Whether sovereignty is a feature of an office (or institution) or of a person or body of persons. Linked to this, the difference between sovereignty as something possessed by a State (e.g. the United States, Argentina) and sovereignty as something that may or may not be possessed by an institution within a State (e.g. Parliamentary sovereignty in the United Kingdom, the absence of a single sovereign institution within the United States).

·                What it is for a State to be ‘internally’ and ‘externally’ sovereign.

·                The notion of ‘popular’ sovereignty.

·                Whether we can think of sovereignty as something possessed within a limited jurisdiction (e.g. ‘I have authority over matter X but not over matters Y and Z, but my authority over X is final and complete, so I am sovereign over X’) or whether sovereignty must entail a notion of unlimited jurisdiction.

Before starting with the conceptual clarifications it is important to highlight that I am working with the concept of sovereignty—hence its conceptual implications—as it already exists and I do not propose a new definition.”

"The final publication is available at link.springer.com”.

About the Impossibility of Absolute State Sovereignty

We will continue with this analysis every Friday. Your comments are always appreciated. It is indeed in the variety of opinions and reasonable discussion that lies the secret to a paradigm in international relations.