by Dr. Angelika Brinkmann
Paper presented at the 16th ISODARCO Summer Course 1994
From UNO to AOP
New Territorial Conflicts in an Old World Order
New ethnic, minoritiy and territorial conflicts have become the main threat to peace and securitiy not only in Europe but the world in general. In the former Soviet Union over 60 new national and ethnic conflicts are under way, 20 of which are armed ones. In Central and Eastern Europe, nationalism and minority conflicts are jeopardizing the stability of the new democracies. In Western Europe, too, tensions between majorities and minorities, especially across ethnic lines, appear to be the main source of violent conflicts. Conflict prevention requires an adequate political system to address disputes as they arise, and good channels of communication and procedures for dealing with these disputes.
One of the major sources of conflict in the world is the disjuncture between peoples and states. States are mostly regarded as legitimate international actors and the source of rule-making authority and power. Peoples, on the other hand, have very little international standing, unless they have their own state. For those who have not, such as minorities, or peoples spread in compact or dispersed patterns across several states, obtaining recognition and equal rights can be difficult. There is an understandable wish to create new states, to which existing states then object. This problem is especially acute in Eastern Europe, but also in Asia, where ethnic heterogeneity is high and states are poorly aligned with peoples.
At the same time national sovereignty and territorial states have already lost their meaning without being replaced by a new order in a positive way. This unresolved and contradicting situation of political and economic incongruity has lead to a dangerous and frail world. What has to be considered are the political structures, the organization, the decision making process, and the methods used to react on a violation of a ban of any kind.
There is an increasing discrepancy between no nationality and permanent legal recognition of territorial sovereignty. This leads to a dispute settlement system carrying symbols of the law of the fist like 'Iraq versus U.S.A.': in which there were also elements of an international 'police raid', enforced to punish bank robbery. All those parties having played an active role in that conflict referred to the U.N.Charter; but the U.N. Charter is too weak to stop self-justice. It especially does not include an obligatory legal procedure under which disputing parties can present their mutual demands and try to claim their rights, but will also have to accept a verdict. The International Court of Law can only act if states are actually willing to bring their disputes before that court. This still means a tribute to the Principle of the territorial state which does no longer correspond with the world-wide integration being in process.
There are now five years left in this century. What do we think the world will be like at the beginning of the next?What will be the security situation for the many countries which are small or of medium size?
One could reasonably forecast technological developments by extrapolating
from current trends, but it would be much more difficult to forecast political
developments, because the pace of change is much faster. Studies forecasting
the future that were undertaken ten years ago have turned out to be generally
correct in terms of factors that did not change until five years ago, like
the concentration of military power in the hands of two super powers and the
absence of nuclear war. However, they requently overlooked events such as
the oil crisis, the revolution in the Islamic Republic of Iran, and the war
in the South Atlantic.
Any attempt to make a general prognosis, taking into account all factors like technological development, economic and trade co-operation, international relations, social development, population growth and migration and changes of attitude will, like meteorological forecasts, become more and more imprecise the further it looks into the future. It is notorious that diffferent studies of this kind arrive at different conclusions. There seems to be a consensus about the main characteristics of a peaceful world: we should try to build for the next century. The basic principles are laid down in the United Nations Charter and agreed principles derived from it. There are also principles agreed in the Final Act of the Conference on Security and Cooperation in Europe and in the Convention on the Law of the Sea.
There also seems to be a consensus on the desirability of strengthening and developing the system of international law and of reducing the role of military force in international relations. At least that should be a main interest for States of moderate or small size. The years have overtaken us, however, and history has taught us that neither the worst case scenarios – nor the wildest – approximate the reality of the future. The 21st century is only five years away and we still do not know how to imagine a 'new world order'.
The nation-state and the new development
We are discussing how to get there from here. It follows logically that the journey and the arrival will be conditioned by our starting point. Contemporary concepts of security, military technology and strategies must all be taken into account if we are to structure a foundation for a new world order. What we project for the year 2000 and beyond will necessarily be influenced by the reality and developments of today. Even if we visualize a break from the past, we must be conscious of what we are breaking away from and do not want to return to. One major goal is economic development, which is inextricably linked to the question of stability and security. So far, all issues touched upon are dealing with the concept of a nation-state, which is the dominant form of organization in the modern world.
Of course, most modern countries are making different claims: they pretend to be modern because they are on the verge of abandoning the nation-state and demoting the nation. This looks more like a self-perception which is rather self-serving and probably wrong; nonetheless it seems to be part of the discourse of human rights that has been appropriated by the elites of these countries and which functions to legitimize their rule internally, to preserve their hegemony externally and to isolate, e.g., „Europe“ from troubling developments in neighbouring states.
Despite such rhetoric, neither the nation – as a self-confident cultural community – nor the state as a political organization with monopoly of violence, in some territories appears to be on the verge of extinction. Ethnic groups in the former Soviet Union and other parts of the world are very much in the process of asserting their nationhood. The peoples of Western Europe, both the majority nations and the minorities, are all reclaiming their history, asserting their prerogatives and establishing themselves as bona fide corporate entities. To be more precise: people are learning foreign languages, are travelling and sometimes even developing multiple identities, but none of these characteristics contravenes the fact that the background on which all of these trends are taking place is the nation. The trend may change, of course, but there seem to be few indications of why it should any time in the near future.
The role of elites and national identity
There are a lot of studies why nations emerged several centuries ago, but today it is more important to question why they still exist despite their sometimes atavistic actions. To be honest, it is probably impossible to give a definite answer, but there are certain pillars: secularism, democracy and the market. Anthony Smith has argued that the crisis of the intelligentsia is a crisis that had much to do with the emergence of secularism in a religious world; it was directly responsible for the emergence of national identities among ninetheenth -century European elites. No matter whether one agrees with Smith's argument, it seems unquestionable that the growing absence of the divine from the world at least facilitates the continued maintenance of national identity and national self-assertiveness in the modern world, and thus contributed to the growing emphasis on values that underline the human side of life. It is in this sense that human rights are substitute of some kind for the divine. Possibly even more powerful a substitute is the nation, or until recently perhaps, the class. An observation often made was that of resemblence of the fervour with which nationalists and communists have dedicated themselves to their groups to that of religious devotees in their common willingness to sacrifice their lives for the higher goal of an abstract ideal.
The connection between democracy and the nation is equally straightforward. Democratic regimes are self-styled popular; they derive their legitimacy from the people and from their activity on behalf of the people. The American Declaration of Independence, in its insistence on government by, for and of the people is thus a classic nationalist document. Naturally, the people can be a multiethnic, indeed a multinational association. Yet it would appear to be highly likely, if not indeed inevitable, that in its appeals to the people a democratic regime will either emphasize the national characteristics of that people if it is ethnically homogeneous, or will attempt to create more or less homogeneous characteristics if the people is ethnically heterogeneous. Legitimacy requires that a strong connection be established between government and 'the' people. The logic of the situation demands that a people in general, be transformed into a collectivity deserving of the definite article.
Another 'unifier' is the market; it supposedly overcomes national differences, brings nations together, makes the state and, of course the nation-state superfluous. Today's Western Europe is supposed to be the prime example of the manner in which market relations overcome national narrowness, passions and emotionalism. Of course one could point to just as many, if not far more, examples of how market relations also seem to have the radically opposite effect, leading to such phenomena as neo-Nazi attacks on racial minorities in Germany, Jean-Marie Le Pen's fulminations against immigrant threats in France, Jörg Haider's encouragement of racism in Austria and economy à la Thatcher in England. However, it is important to point out that markets place peoples into contact and competition. Nations that may not have known one another and thus, by fact, could not have been in conflict, are brought together under conditions that contribute little to peaceful resolutions of emerging problems. (Karl Deutsch, Nationalism and Social Communication, 1966). In addition to that, the market has an inevitably differential impact on individuals and peoples. After all, one purpose of the market relations is to reward efficient regions and to penalize inefficient ones. As Michael Hechter has argued, the market's accentuation of regional differences can create national differences, thereby not only leading to competition but also actually generating the drive toward independence as the only solution to the perceived inequities of capitalist relations. (Michael Hechter, Internal Colonialism, Berkely 1977). One proof of these observations being correct can be seen in today's Western Europe where 'national liberation struggles' are multiplying with the creation of a unified market in a democratically ruled 'Europe of regions'. Regionally based national minorities assert their right to self-determination, but the dominant nations will likely experience a renewal of national pride, perhaps hatred, toward these minorites, toward other nations and toward states. Therefore, the future is shining brightly on the concept of a nation-state, since the major of modernity, the market, democracy and secularism require the continued existence of that institution.
Although recent developments in a variety of countries represent something in the nature of scaling down the functions of the state, largely under the guise of neoconservative justifications that emphasize the role of the market in creating social prosperity. It is equally true that countervailing pressures are pushing the state to assert itself in such areas as social policy, education, infrastructure and the like, precisely those spheres in which, as Adam Smith pointed out long ago, the market is perhaps inherently incapable of playing a decisive role. Seen in this light, the growing importance of communications to the industrial and postindustrial world means that the state will continue to exhibit a high profile in this sector for the foreseeable future. Roads, bridges, ports, satellites and other expensive public projects with low profit expectations will long remain the preserve of the public institution par excellence, not of the market. Perhaps more important, the market, while possibly the most efficient form of social production, is also unable to guarantee the just distribution of the social product, be it in the form of public services or social safety nets. Short of the realization of utopian socialist visions of the self-rule of autonomous workers, it is the state that will continue to be most responsible for the fair division (distribution) of the social surplus and for the creation of conditions under which all individuals will be best able to pursue what they universally consider to be their entitlement to human rights.
In addition to arguments concerning the continued vitality of the state's internal functions, the division of the world into states that claim to be, or by and large actually are, nation-states will continue to privilege the state as long as that division persists which to all appearances will be a long time. States, after all, do not disappear easily. Not only are their resources generally far greater than those of their challengers within opposition movements, but the international system in general, and the great powers in particular, are usually opposed to the disappearance of states, at least in the Peace of Westphalia. Even under conditions of war, states are reluctant to see the complete eradication of their rivals and the emergence of successor states. The crises in the Soviet Union and Yugoslavia, whose republics appealed to the very right to self-determination that the West loudly prolaimed for several decades, were thus instuvtive, showing – once again – that Western states are still as concerned as ever with raison d'etat and not with the rights of indivivuals or of nations.
Thus, the emergence of international organizations is not only not contradictory to the state, it is premised on the existence of states: It is states, after all, that are united in the United Nations, the European Community, etc. There is no transformation of quantity into quality at work here, insofar as sovereignty, the supreme that all states still claim they want to preserve, is something that states either possess or do not. However great their involvement in international organizations, therefore, states will continue to be repositories of sovereignty until and unless they decide to self-destruct. By the same token, however great the autonomy of sub-state regions, their authority will always remain subordinate to that of the state and therefore not be supreme. To be sure, the growing role of international economic processes, of international organizations and of non-state international actors will reduce the dominant position of the state in the world arena.
The concept of sovereignty has been one of the most controversial notions in constitutional and international law, as well as in political science. It has been linked to the idea of indivisible, about political authority and has been considered one of the main attributes of statehood. In some cases it has been used and abused in order to justify totalitarianism and expansionist regimes or to glorify the state.
In the rare cases where the boundaries of the state and those of the nation coincide, the old notion of sovereignty can still play a role. The rising tide of nationalism and ethnic consciousness, however, requires a more subtle view of sovereignty. Where various national or ethnic groups coexist in a state, their aspirations for self-determination or self-rule may require a recognition of partial, functional, divided or shared sovereignty. The interdependence of states also calls for a more flexible notion of sovereignty.
The traditional notion of sovereignty
The term 'sovereignty' was used in ancient times, but when dealing with the present-day notion of the concept, one should be careful not to be overly influenced by the use of the term in the remote past. The meaning of a concept is related to the civilization prevailing at a certain period, and a drastic change in the political environment may entail a new meaning or nuance to an old concept.
During the late Middle Ages, the notion of sovereignty was used by territorial rulers to justify their aspirations to free themselves from the influence of the emperor and the pope. The term was also used to consolidate their exclusive territorial jurisdiction in contrast to overlapping medieval personal jurisdiction. A few examples of recent and current definitions and descriptions will show that a great variety of opinions still exists on this matter. Usually, a distinction is made between the internal and external aspects of sovereignty. The former means the highest, original – as opposed to derivative – power within a territorial jurisdiction; this power is not subject to the executive, legislative or judicial jurisdiction of a foreign state or any foreign law other than public international law. The external aspect of sovereignty underlines the independence and equality of states and the fact that they are direct and immediate subjects of international law. In the words of the Swiss international law expert Max Huber: ''Sovereignty in the relations between States signifies independence. Independence in the regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State.“[Island of Palmas Case, UN, Reports of International Arbitral Awards, No. 2, 1949, p. 838]
Some early German scholars described sovereignty as power of power/Kompetenzkompetenz, i.e. The power of an entity to determine the scope of its own competence and to regulate its exercise.[Meyer,G.: Staatsrecht, p.23 note 12, quoted in Jellinek,G., Allgemeine Staatslehre 3rd ed.repr. 1960]
What are some implications of sovereignty?
The notion of state sovereignty has had important consequences, some of which are briefly outlined:
''Sovereign equality“ of all states.
This principle has been described by the United Nations General Assembly in 1970 in the following terms:
All States enjoy sovereign equality. They have equal rights and duties and are equal members of the international community, notwithstanding differences of an economic, social, political or other nature.
In particular, sovereign equality includes the following elements:
a) States are judicially equal;
b) Each State enjoys the rights inherent in full sovereignty;
c) Each State has the duty to respect the personality of other States;
d) The territorial integrity and political, social, economic and cultural systems;
f) Each State has the duty to comply fully and in good faith with its international obligations and to live in peace with other States.
Sovereignty has recently suffered severe setbacks from a practical point of view, as well as in the context of international law. The demise of the idea that the state has full, comprehensive and exclusive sovereignty is warranted by the facts of modern life. George P. Shultz, for instance, has observed '' a wide array of shifting sovereign arrangements“ as a consequence of the fact that ''the very borders of nations are no longer under genuine sovereign conrol.“ The financial markets are now interconnected world-wide due to modern communication systems; people, ideas and criminals move across borders in great numbers; ballistic missiles reduce the relevance of borders; and free trade agreements and common markets render ideas of a state's selfcontained economic system obsolete.[George P. Shultz, ''On sovereignty,“ Lecture on the occasion of the 25th Anniversary of the National Academy of Engineering, Washington D.C., October 4, 1989] Another example of a loss of sovereignty is the former GDR when giving up their authority regarding their own currency to the FRG on July 1, 1990 which meant a loss of self-determination.
The rise of democracy and federalism has involved a loosening of the notion of sovereignty within the state. While in the remote past the king or prince was considered to be the sovereign, the American Declaration of Independence of 1776 favoured popular sovereignty, while the French constitution of 1791 declared that sovereignty belonged to the nation. The complex federal structure of the United States made it difficult to designate a sole repository of sovereignty of the union and component states.
Sovereignty versus self-determination
There is often made a link between sovereignty and self-determination. The recognition of self-determination as a rule of law came in 1976 with the entry into force of the two International Covenants: one on civil and political rights, the other on economic, social and cultural rights. Both had been opened for signature in 1966. The first article of each covenant provides that:''All peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic and cultural development.“ This article leaves many questions open and suggests a number of ambiguities.
The first and foremost problem is the lack of a generally accepted definition of ''peoples“. Most definitions include two elements: the existence of objective links, such as cultural and historical ties, and a common, subjective wish to belong together; But these are also the ingredients of the notion of an ethnic group, and it is difficult to draw the line between peoples and ethnic groups. The distinction is important since only ''peoples“ have the right to self-determination, while ethnic groups may merely enjoy minority rights. The lack of a clear definition of the notion of peoples introduces a severe ambiguity and an element of subjectivity, often leading to a double standard in the recognition of the right to self-determination in specific cases.
A second hotly debated question is whether the right to self-determination applies only to colonial situations, or whether peoples within existing independent states may also claim it in order to justify a right of secession. [Hanum Hurst: Autonomy, Sovereignty and Self-Determination-The Accomodation of Conflicting Rights, Philadelphia, PA, 1990 p. 36] The texts recognizes the right to self-determination of ''all peoples“. On the other hand, the international community is in principle opposed to any violation of the territorial integrity of existing states. Hence, most scholars consider the right of self-determination to be limited to colonial situations, and secession is not considered to be permitted. [Hanum, p. 46;] There are some, however, who have tried to strike a balance between the two norms. Franck, basic his idea on ''the notion of entitlement to equality“, proposes that ''self-determination is a right applicable to any distinct region in which the inhabitants do not enjoy rights equal to those accorded all people in other parts of the same state.“ [Franck, p.168] Another problem related to the question of who qualifies for self-determination concerns minorities within the majority that strive for self-determination. If a minority also constitutes '' a people“ whatever that may mean – does it have the right to define itself, independent of the majority?
In recent years the General Assembly has dealt with self-determination as if it were a synonym of independence. The principle of self-determination contradicts the rule of uti possidetis, according to which newly established state boundaries should follow those that existed in colonial times. In the past, this principle used to be applied mainly in Latin America, but in 1986, in settling the frontier dispute between Burkina Faso and Mali, the International Court of Justice declared it to be universally applicable.
Another question concerns the relevant date: Since majorities and minorities in a certain territorial frame may change, it is important to decide on a ''critical date“, namely a specific date on which a person had to live in the area in order to qualify for participation in the vote.
Since many consider the principle of self-determination to be a superior rule, one could have expected that it should be universally applicable, but it does not apply in Latin America or Africa. In these continents the stability of boundaries based on the delimitation inherited from colonial times is preferred to self-determination, as illustrated by boundary settlements between Latin American states and certain resolutions of the Organization of African Unity.
What is the question of the interaction between sovereignty and self-determination: In those cases where the population of a state is homogeneous, one may assume that the recognition of the right to self-determination reinforces the state and its sovereignty. However, the sovereignty and territorial integriy of a heterogeneous state will certainly be endangered by the concept of self-determination. The U.N. General Assembly Declaration of 1970 on Friendly Relations tries to tackle the problem in some more detail.
Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.
Every State shall refrain from action aimed at the partial or total disruption of the national unity and territorial integrity of any other State or country.
However, this provision leaves many crucial questions unanswered: Is it enough that a heterogeneous state, in order to be considered in compliance with the principle of self-determination, has a government representing the whole population? Is self-determination or secession prohibited in the case of a multi-ethnic democratic state but permitted in a nondemocratic one? It would seem that self-determination, at least in its external aspect, and if applied to noncolonial situations, is not compatible with sovereignty and its main corollary: the right to territorial integrity.
After the First World War, the League of Nations was born. After the Second
World War, the United Nations was to succeed where the League had failed,
including creating a new international order of peace and democracy. Now that
the Cold War is over, the belief is wide spread that the world has entered
a new age in which the United Nations can fulfill its original mandate and
help establish a new world order. Since the 1990's, the United Nations is
trying to aspire to larger responsibilites. U.N. is administering vast aid
programs and can even take over the functions of a government. But U.N. officials
do not answer to tax payers or voters. They answer to the U.N. secretary-general,
who in turn answers to dozens of different governments. Many of these governments
are authoritarian, corrupt and unaccountable themselves, yet they are given
a decsive role by the world bodies. The UN can sometimes be a useful forum
for the worlds' governments to exchange views. But the idea, that the U.N.
Secretary-general can act somehow as a global representative or that the U.N.
staff can function as an honest and effective international civil service
– is an illusion. A great organisation to do humanitarian work is the
International Red Cross.
So, like the League of Nations failed to meet expectations , the UN today will probably disappoint those who expect to much from it. Obviously, the U.N. cannot be any more successful then international politics and powerful international players allow. The U.N. will never be an independent political force on the world scene. One reason: the U.N. is still a body of states dedicated to the notion that the sovereign unit of international politics is still the nation-state.
Sovereignty in this classic connotation of total and indivisible state power has been eroded by modern technical and economic developments and by certain rules of modern constitutional and international law. Due to innovations in the sphere of communications and transportation, state boundaries are no longer impermeable, and all national economic systems are interdependent. Various new normative rules – in particular in the areas of the prohibition of the use of force, human rights and self-determination – have serverely undermined some of the basic ideas linked with sovereignty. Participation in international organizations with wide powers, in particular in the supranational European Community, has gradually reduced the substantive amount of powers implied in sovereignty.
The ethnic revival is another severe challenge to the old notion of sovereignty. Since several thousand peoples or ethnic communities exist, and the globe is too small to provide each of them full sovereignty over a piece of land, a compromise must be found to satisfy at least partially the aspirations of the various groups. The above analysis has shown that the term sovereignty can be used in a flexible manner: In a case of diffusion of power, both the central government and the regional or autonomous authorities could be the lawful bearer of a share of sovereignty, without necessarily leading to the disappearance or dismemberment of the state.
The passing of the Cold War offers new opportunities to make the U.N. more effective. It often leads to high expectations for international cooperation. One possible answer: an association of peoples (AOP). It could be negotiated and set up on a local level, but across borders, if so agreed upon by all groups affected. The most crucial part would be to agree on a mediator. An AOP could better serve todays expectations and demands because in many instances the high profile and highly conflictual nature of population movements has affected which institutions make exit and entry rules and engage in international negotiations. Decisions on such matters have come to be dealt with not by ministries of labor, border control officials, or the courts, but at the highest level of government in the foreign and defense ministries, the security and intelligence agencies, and by heads of government.
An alternative policy based upon the needs of immigrants, refugees and ethnic groups, though morally more attractive is more difficult to formulate, more difficult to implement and legally and politically more contentious. But no policy, short of the obliteration of internationla boundaries and sovreign states, can deal with the vast number of people who want to leave their country for anouther where opportunities are grate and life is safer.
While the notion of sovereignty is still rhetorically recognized, a variety of ''internal“ actions by states are increasingly regarded as threats by other states. Realistically, the U.N. may be a useful player in settling international conflicts, but with the Cold War being over, the world most likely will emerge into a multipolar system, where traditional patterns of great power competion may reemerge though with a different symptoms. A structural shift from a state-based U.N. to a movement-organised AOP would obiously mean a shift to a more regional and locally based level, presenting a challenge to the UN and the international legal system It could mean a more flexible and ad-hoc structure that may be called upon without permission by 'officials' of anyone of states affected by movements of peoples.
In sum, the world maybe a safer place, but maintaining it that way may be a lot more difficult because global security concerns will become geographically and culturally diffuse.
Sovereignty has played an important role - sometimes beneficial, in other cases harmful – in international relations. Although it has lost much of its relevance, it will probably survive since it has a strong symbolic appeal; but it should be recognized that sovereignty has undergone great changes due to the growing interdependence of states. Finally, it has to be adapted to the need for diffusion of power within the state.
AOP is a prudent approach that could avoid provocative actions of one ethinc refugess groups, which would cause other minorities within a state/nation to regard opponents as an overpowerful actor. It could also minimize the risks of open confrontation with emerging minorites within one state and enhance a non-governmental group's or regional state's relative power indirectly through skillful crisis management.