National sovereignty inviolable, important

Ajit RANDENIYA

The matters relating to the concept of national sovereignty raised by Dr Nihal Jayawickrama in a recent Sunday newspaper article deserve comment and response due to the sacrosanct nature of sovereignty to the developing countries of the world.

The fundamental issue Dr Jayawickrama raises is that Sri Lanka’s claim that attempts by Western nations to meddle in its internal affairs violate its national sovereignty is based on a ‘constitutional myth’. He asserts that the doctrine of sovereignty has ‘long been eroded’ by international treaties such as those on slave trading, the Geneva Conventions on war, and the peace settlements that followed the First World War. Dr Jayawickrama also asserts that Sri Lanka may be confusing ‘sovereignty’ with the now defunct international legal concept of the ‘State’.

Key points

Dr Jayawickrama’s main supporting argument is that the establishment of the United Nations (UN) resulted in a new set of superior international standards that require conformity by all national legal systems: he cites Articles 55 and 56 of the UN Charter to support his assertion.

UN’ s treatment to certain countries is unfair. rfirl.org

These key points raised by Dr Jayawickrama however, do not hold up to scrutiny in the light of a holistic consideration of the concept of sovereignty in a historical perspective, the UN charter, or the legal domain within which the UN sponsored international treaty making and enforcement takes place.

Sovereignty is a concept that refers to a nation’s supreme, independent and absolute authority over its territory, restricted only by a national constitution, a Rule of Law infrastructure and the culture and customs of the particular nation. The key element of sovereignty in a legalistic sense is the exclusivity of jurisdiction it entails. The principle of sovereignty however, does not deter agreements among sovereign states, through treaties, on legislation to address issues involving common (international) territories, or more than one nation.

Recognition of national sovereignty has been the foundation of civilized international relations in the East for thousands of years: according to the Anguttara Nikaya, 16 ‘sovereign’ Mahajanapadas (great nations) existed in sixth century BC India, before the time of the Buddha. European nations adopted the concept as a means of instilling political stability much more recently, following the end of the 30 years war, at Westphalia in 1648.

No ‘world legislature’

Dr Jayawickrama’s assertion that there exists a body of international legislation that has been ‘eroding’ national sovereignty constitutes an overstatement in the least, in view of the fact that there is no ‘world legislature’ with the authority to make obligatory international laws.

The examples Dr Jayawickrama has cited are the only treaties the world consented to, due to the egregious nature of the crimes of slavery and genocide, that they be enforced by the international community if the need arose. International treaties could not, and do not, distract from national sovereignty in any way.

While Articles 55 and 56 of the UN Charter mentions that international law could prevail over the national law of a country under certain circumstances, Article 2 states that “The Organisation [UN] is based on the principle of the sovereign equality of all its Members”. The UN operating as a global enforcer is anathema to the founding principles of the organization.

The limited instances of international ‘use of force’ against UN member states, such as the US-led NATO action in the Balkans and the Iraqi invasion of 2003, were committed by the United States without the express authorisation of the UN Security Council, under the pretext of protecting the ‘human rights’. The UN General Assembly has demonstrated its disapproval of such unilateral action in no uncertain terms.

It is extremely unlikely that the principle of national sovereignty as a governing principle of international relations would ever be ‘outdated’ or become ‘unnecessary’.

All in all, Dr Jayawickrama’s argument that Sri Lanka could not, or should not, invoke national sovereignty to ward off uninvited interventions in its internal affairs by Western powers with vested interests is spurious and disingenuous. From a developing country stand point, the principle of national sovereignty served as their ‘saviour’ from European colonialism in the 20th Century, and it continues to serve as a ‘bulwark’ against future neocolonialist adventures.

The militarily powerful Western nations of course, hold the view that sovereignty is tantamount to their ‘freedom’ to use force, or threat of force, over states with weaker military capability or political will.

The writer holds LL.B. (Hons.) and PhD (International Relations) degrees from the University of Sydney, Australia.