Some thoughts on sovereignty

Why it will never go out of fashion

Travelling through Europe over the past few days, encountering a number of borders some (shall we say) rather harder than others, I’ve been thinking about the nature of sovereignty, what it is to be a nation and why it still matters.

From a diplomatic perspective, there are some clear criteria determining what counts as a sovereign state but, as you’d expect, there are also some tricky cases. The base case is set out in the Montevideo Convention on the Rights and Duties of States, dating back to a meeting of the Conference of American States in 1933, which is widely used in customary international law. To be a state, you have to have a permanent population; a defined territory (there might be some outstanding relatively minor territorial disputes, but they certainly can’t be so big as to call the identity of the state into question); an organised government of some kind (of course, it doesn’t have to be one to your liking, it just have to be able to exercise control); and finally the capacity to enter into relations with other states. Looked at from another angle, to be independent and sovereign, a must not be under the control of another state and must have independent control over its own domestic and foreign affairs.

Although may at first glance look straightforward, the fourth criterion in particular shows why it isn’t. A state can claim to meet all four tests, but if enough others don’t recognise it as a state, it has somehow fallen short. The UN didn’t exist when the Montevideo Convention was drafted, but today UN membership is a clear proxy for statehood. But that isn’t simple either. To become a member of the UN, a state has to make an application to the Secretary-General. The application is first considered by the Security Council. Only if the Security Council agrees, is the application put before all the existing UN members in the General Assembly. Given that the five Permanent Members of the Security Council (UK, US, France, Russia and China) each has a veto, it’s clear why some applications never reach the General Assembly.

Let’s look at a few of the tricky examples which remind us that international law is all well and good but, in the end, is no more than state practice. Unlike national law (at least in some countries and in theory), it is not above (geo) politics.

Let’s start with Taiwan. Taiwan meets the Montevideo criteria, but in 1971 the UN General Assembly transferred China’s seat to the People’s Republic of China (PRC) and since then Taiwan has been largely outside the UN system. Prioritising their relations with the PRC, many countries including the UK don’t recognise Taiwan, so today there is no need for China to exercise its veto on a Taiwanese application, though there’s no doubt it would.

Palestine has more active support at the General Assembly and is currently recognised by 147 UN members, even though it arguably doesn’t fully meet any of the Montevideo criteria. With three of the Permanent Members of the UN Security Council (US, UK, France) not recognising Palestine, there is at present no prospect of its joining the UN as a full member, but has been a non-member observer state since 2012. A number of states have recently recognised Palestine, either as an expression of solidarity in the light of the conflict in the region (or, put in more realist terms, to protect or advance their interests in the region) or because they believe that recognition will aid a settlement in the region. Whatever your position, it’s clear that these recognitions are primarily political rather than legal. Which just goes to remind us of the limitations of international law as the driving force of geopolitics.

Finally, it is not immediately clear how many states have recognised Kosovo, with the Government of Kosovo itself claiming 119, Serbia asserting that the number is well short of 100 and a range of other counts in between. The dispute about the number reflects in part a number of states which have changed their position as as a result of lobbying from Kosovo or Serbia and their allies, and more generally is a sign of the depth of the underlying geopolitical division on the issue. For example, in the Security Council, the UK, US and France recognised Kosovo in 2008, while Russia and China continue to refuse to do so. Even within the EU, 5 out of 27 members have not recognised Kosovo. Individual states’ decisions on recognition have often been determined by the influence of their broader alliances, but also in some cases by concern about the precedent set by recognising a state born out of a conflict in which outside (western) intervention was a decisive factor. This is the kind of consideration that matters in the Global South. Again, whatever your view, these decisions are political, not legal, and driven ultimately by realpolitik. That’s life.

Sovereignty doesn’t just matter when it comes to recognising states or applying to join the UN. It’s very much at the centre of the geopolitical agenda today in many parts of the world. Ukraine, and those supporting it, says it is fighting for its sovereignty against attack from Russia. Israel says it’s defending its sovereignty against a threat from Iran - and has for some time been defending itself against attack from Gaza. Iran today claims to be defending its sovereignty against Israel. Canada - with some support from allies - has been standing up for its sovereignty against President Trump, and Denmark has asserted its sovereignty over Greenland.

The defence of sovereignty and self-determination is the oldest chapter in the geopolitical book. In one form or another, it drove post-war decolonisation, followed by the division of Yugoslavia and the Soviet Union. Since 1990, 34 new states have joined the United Nations, many (but not quite all) having decared independence from the state of which they were previously apart, from the former Soviet states to Eritrea and South Sudan. Sovereignty and self-determination are very much in fashion, and - if in some cases initially reluctantly - been supported by the West.

At the same time, the trend in Europe over the past five or so decades has gone in the opposite direction, as my seamless trip last week across several Schengen borders demonstrates. The EU effect is reassuringly described as “pooling sovereignty” and is now apparently a firmly established reality of governance in the continent. Ukraine, along with several Balkan countries, aspire to EU membership, along with the prosperity and security it brings to the more vulnerable parts of the continent.

There’s no disguising the fact that these two trends - self-determination and “pooling” sovereignty - pull in opposite directions. While greater coordination between states and centralisation of decision-making can lead to greater efficiency and effectiveness in a world influenced by global trends and multinational companies, it also inevitably reduces accountability for the big decisions. If that’s attractive to a professional producer class that realise those efficiencies and manage its own interests well among complex and remote structures, it’s no surprise that the resentment of those with less influence has led to a growth of nationalist parties and movements across Europe. Some of this clearly has to do with fears of large-scale migration - would anyone seriously invent Schengen today? - but it comes back to self-determination.

Why do peoples seek self-determination? First, because they want to escape from being governed by those, often far away, whom they suspect are different and don’t have their best interests at heart. They want instead to be able to elect - and ultimately - remove their own leaders, even if it doesn’t always work out that smoothly. In short: “You vote in a general election, you elect a government, and if you don’t like them, you can get rid of them.” That was said by the Labour politician Tony Benn in defence of British parliamentary sovereignty against European integration. This is the essential appeal of self-determination. Conversely, it also explains the attractiveness of remote government to elites who can use it to avoid scrutiny and accountability for their decisions. The primary appeal of remote government is always to the rulers rather than the ruled, hence the increasing complexity attached to supranational structures. You don’t need today’s all-prevalent social media for voters to see the consequences of this, but it helps. Which is why of the two trends, for all the talk of globalisation and the need to unite to tackle “global crises”, it’s self-determination that’s the more sustainable.