State sovereignty and international law

by Dr Ishtiaq Ahmed

Contemporary states are territorial entities whom international law invests with sovereign rights over their recognized territory within well-defined and demarcated borders. International law outlaws the violation of the territorial integrity of a state. The state enjoys the exclusive prerogative to exercise the monopoly of power over its territories and population. It means the right of states to maintain armed forces as well as other apparatuses to impose their will within their territories. However, the assumption is that the state will not abuse sovereignty as a licence to treat its population arbitrarily. States express their will through the government. Therefore, I think the appropriate designation should be state-government.

The state government is expected to uphold the rule of law. The UN Charter underlines the importance of citizens being treated in accordance with international treaties and conventions pertaining to human rights, women’s rights, the rights of children and minorities. Member states are advised to sign and ratify such treaties. Most do but do not follow their obligation in letter and spirit.

There is a wide discrepancy between what international law prescribes and what state governments do. Human rights violations are widespread in many parts of the world, especially in developing countries. The UN Charter does not permit external intervention in the internal affairs of a country unless genocide or crimes against humanity are alleged and the Security Council agrees to such allegations.

The important thing to remember is that the international political system is constituted by territorial states whose existence and stability is imperative for the system to function smoothly. Hence the idea of well-defined and explicitly demarcated international borders is central to international stability and peace.

In practice, however, the ability of the state to exercise the monopoly of power may not be very efficient and it may even be defied by separatist movements seeking to secede from a state to establish a separate and independent state of their own.

However, I demonstrated in my book, STATE, NATIONAL AND ETHNICITY IN CONTEMPORARY SOUTH ASIA (Pinter Publishers 1996; 1998; and reprint 2019 Fiction House, Pakistan) that given the biases in favour of the territorial states to maintain their territorial integrity it is illegal to intervene in the internal conflict between the state and separatist movements in behalf of the latter. Therefore, in nearly all cases states can crush separatist movements. The cases of Sri Lanka where the Tamil separatist movement was crushed mercilessly and Syria where the Assad regime survived because Russian and Iran frustrated attempts by those striving to overthrow the regime.

Exceptions are when powerful external states do intervene and help a separatist movement to break out of the state. The Indian intervention made it possible for Bangladesh to emerge as an independent state and thus former East Pakistan ceased to exist. Equally, NATO enabled several states to emerge in the Balkans and thus Serbia’s ambitions to retain most of the former territories of Yugoslavia were defeated.

Even rarer is that the state and a separatist movement agree to separate as happened in former Czechoslovakia and two states emerged as a dissolution of it: the Czech and Slovak republics. Ethiopia and Eritrea also separated peacefully through negotiations. Such examples are like the exception to the rule of states striving to maintain their territories and the international system favouring such an attitude.

However, the problem of sovereignty in the external sphere is exceedingly difficult to define though states are presumed to be sovereign in deciding their foreign policies and actions. A profoundly serious problem that poses a threat to peace and stability in many parts of the world is the disputes and conflicts over territory and the demarcation of international borders. However, much of the world has shown maturity and decided not to take recourse to force to resolve their border disputes.

Successful cases of states agreeing not to resolve their disputes over territory through the use of force are the member states of the African Organisation of Unity (AOU). No other continent has been left behind by colonial powers with arbitrary borders other than the African Continent. It must be admired that by and large Africa has avoided wars over disputed borders.

The principle of non-interference in the internal affairs of one another and not to resort to force to resolve disputed borders has been a great success in Southeast Asia where ASEAN (Association of South East Nations) too has many disputed borders but they have resolved their conflicts through arbitration or bilateral negotiations.

The same is true of Latin America where the administrative borders drawn by the Spaniards were accepted and the successor states decided not to start wars over their borders. Even Arab states created out of the Ottoman Empire have largely accepted the borders which were established during the mandates under the tutelage of Britain and France. The only great problem has been the disputes between on the one hand Israel and the Palestinians and the Arab states on the other. That problem is likely to be resolved in the near future if Israel concedes substantial autonomy to the Palestinians.

While the European Union is a successful model of states retaining their sovereignty over their territories but voluntarily agreeing to the free movement of goods and people this is not true of the Baltic region, Ukraine represents a case of disputed borders with the Russian-speaking minorities seeking closer association with Russia and the majorities wanting to align with the West and even to join the European Union.

The most egregious region with disputed borders has been South Asia bordering China. The borders between Pakistan and Afghanistan, Pakistan and India, India and China remain a subject of dispute and conflict which can potentially trigger war as recent India – China armed standoff has shown and Pakistan and India are almost always prone to the use of force and waste their resources on making claims and counterclaims.

It must be realized that South Asia and its connection with China is not the only region where border disputes originated during British colonial rule. The same has happened elsewhere in the world.

The truth is that international borders are a recent arrival in the world. Earlier empires and vassal states had frontiers where their power and influence fluctuated down the centuries. Therefore, there is no particular date or event from which one can derive an objective demarcation of borders.

It is strongly advised that Pakistan and Afghanistan meet and agree to declare the Durand Line as the international border between them. Such a border should not obstruct the movement of tribes and people in the neighbourhood – a practice that has been established for a long time.

Similarly, Pakistan and India should show maturity and foresight and agree to declare the Line of Control in the former Jammu and Kashmir State as the international border but then move towards making such a border porous for the Kashmiris. The same should be done to the border in Punjab between the Indian and Pakistani Punjab and between Sindh and Rajasthan and Gujarat, which is not disputed but sealed virtually to the movement of people. People should come and go easily while both states maintain their sovereign right over the territory which is on their side.

Another flashpoint is the Line of Actual Control which is the de facto border between India and China. During the past few months that border has been violated, leading to the armed conflict which fortunately did not get out of hand and both sides decided not to escalate the armed confrontation.

Both India and China are great powers with China destined to be the second world power to the United States. It is also the second-biggest economy in the world. India itself is an emerging economic power. Both states have remarkably high stakes in the maintenance of peace.

Since both claim to be heirs to ancient civilizations, they should learn from the past and avoid acrimony and hostility. Chauvinism and jingoism can degenerate into war, which will be destructive to both. Their current disputes are the legacy of the British colonial period. Therefore, they must enter serious and sincere negotiations and amicably resolve their disputes.

A war between them would inevitably mean other great powers entering the conflict one way or another. China is the stronger of the two nations, but it is futile to think that the United States and other democratic states would allow India to be defeated in a war with China.

We do have a particularly good example of India and Bangladesh successfully resolving their border disputes. They now get along quite well, and Bangladesh has been able to spend scarce resources on the development. This should be an example for all states in the region to emulate.

In short, sovereignty in both internal and external matters is limited by international law and responsible states adhere to the rule of law within and international law without. This realization is imperative to maintain and sustain peace and prosperity in the world.