This article is written by Ashrit Goyal, student of Symbiosis Law School, Noida. This article deals with Sovereignty of a Nation and Conflict in laws.
Introduction
There are a lot of doubts which come up in our heads when we read this topic. Some apparent doubts include the question regarding how does the literal definition of conflict in laws manage to collide with sovereignty when sovereignty is in fact the establishment of pure control and supremacy over a region[1]which should theoretically absolve the state’s leaders of any conflict? What led us to pursue the principles of sovereignty in the first place? And about how far the game has come to for this topic to become relevant today can only be understood when we dive into the depths of these individual yet connected topics.
The very concept of sovereignty preludes that all the states are equal but in the real-life it is not necessarily so. It is due to this reason that the oppressed states such as Hong Kong continues to suffer because without power, sovereignty only becomes valuable in the books. Practically, sovereignty means that one state cannot demand that another state take any particular internal action. For example, if Canada did not approve of a Brazilian plan to turn a large section of Brazil’s rainforest into an amusement park, the Canadian reaction is limited by Brazil’s sovereignty. But where the conflict arises is when Canada is righteous in the eyes of International law and Brazil has to either sacrifice some of its sovereignty in the eyes of its citizens or withstand the loss of some of it and maintain international relations. Dépeçage is the legal term in which specific laws are made for a conflict which must be tackled by different conflicting laws within the same case from different states.
When we combine sovereignty and the conflict in-laws in the modern world one simply cannot ignore the rapid change which globalization has brought into the foray. One can take the example of international human rights wherein the treatment of the citizens of one state cannot be taken as the exclusive concern for that state only and rather the entire global community is responsible for the rights and of every person.
International treaties, therefore, bind states to give their own citizens rights that are agreed on at a global level. In some cases, other countries can even monitor and enforce human rights treaties against a state for the treatment of the offending state’s own citizens.
Issues related to the subject
How is this conflict with respect to sovereignty resolved?
We have talked about sovereignty, we have talked about the conflict in-laws and we have also talked about how the sovereignty of today, with respect to globalization, causes even more problems with regards to the conflicting laws between two nations. But how is a common line reached in these problems?
This ‘conflict’ we are talking about isn’t just related to the international laws but in countries like India due to a very unique situation where there are a variety of personal laws there are various interpersonal conflicts as well. [2] The law commission of India said that in the absence of any consensus on a uniform civil code the best way forward may be to preserve the diversity of personal laws but at the same time ensure that personal laws do not contradict fundamental rights guaranteed under the Constitution of India. In order to achieve this, it is desirable that all personal laws relating to matters of family must first be codified to the greatest extent possible, and the inequalities that have crept into codified law, these should be remedied by amendment,” the Commission added. It is because otherwise, various crystallizations of the prejudices or stereotypes can take place in the society.
But, coming back to the crux of this topic, the first way through which we can evaluate this problem is the thesis that, the concept of sovereignty is not a thing as such but a philosophical invention. [3] We find that much critical engagement with sovereignty begins with an apparent concern that there is something wrong, corrupted, or inadequate, with sovereignty in the present, its condition, its fate, and future therefore uncertain, requiring recovery, reconceptualization, and restatement. And so we have the various problematizations of sovereignty in the world, and following this, the many adjectives attached to sovereignty as verb as it is understood to be in the present. But if we stop all this and just pause to interrogate the truth of sovereignty, then we see this supposed thing, being power, presence, that so fixates does not exist outside of its frame. The problem thus being that it is elusive in nature, but it exists and is present nonetheless.
Thus, problems of varying multitudes arises when the solution of the problem instead of starting with the material facts starts with some old chosen definition of a philosopher instead as if his previous assertions and rationalizations constitute the material truth of the thing that is sovereignty in the world. Also is the fact that the invention of sovereignty has its roots further strengthened by the detailed bordering of different subject beings through the licensed governments, containments, bans etc. Here license means the logic of letting out and containment means letting in. This is based on the conventional logic of sovereignty deciding on letting in and keeping out (inclusion and exclusion). A practical example of this would be the various organs of the Indian Legislature and the executive which otherwise cannot function and tackle the tedious issues if it isn’t given such free powers.
To better understand this issue, could the author provide some examples where a conflict of laws happened?
This becomes a very legitimate issue because without an example, understanding a topic which is as philosophical as this becomes very humdrum and confuzzling.
In the 20th century, China, other countries in the east and the southeast Asia, India, Latin America and former communist Europe all entered the globalized economy, which can be seen as the driving force that has also blurred the traditional boundaries of sovereignty. The current concept of sovereignty can all be traced back to the 1648 peace treaty of Westphalia when the plurality of the states was given due attention.
After these concepts solidified, multiple recent cases came to mind when we talk about the conflict in laws arising out of sovereignty. There is the case of Catalonia seeking independence of Spain, implications of China’s newfound sovereignty, UK seeking a way out of the European Union due to Brexit, and the best of all examples today is the J&K dispute over the removal of Article 370 because it is the article 35A and the Article 370 which gave it a unique identity, status and internal sovereignty. Focussing on one of these incidents is the case of Catalonia, which is a semi-autonomous region in north-east Spain with a distinct history since its last 1000 years or so. It also had its own police force and control over some public services and it contributed to about 1/5th of Spain’s GDP. Their demands for sovereignty came up when the Catalan nationalists complained that their region sends too much money to the poorer parts of Spain, as all the taxes were controlled by Madrid. Economic grievances, nationalism, and political disillusionment are some of the other explanations given for the growing secessionist moves in the region.[4]
Through a referendum for sovereignty 90% of the citizens voted for independence but that is where the conflict in laws comes in where Madrid still has all the powers and it categorically refuses to negotiate for any referendum. Apart from this, other reasons identified include strained historical ties, class struggle, the erosion of its autonomous region by General Francisco Franco and the subsequent demand for self-determination by separatists. Catalonia remained an independent territory till the marriage between King Ferdinand and Queen Isabella in 1469 when it was annexed to Spain. Also is the issue that Historically Catalonia has always been richer than Spain. Thus, Catalonia except the matter of being rich is like the J&K of Spain.
Although 90% of people backed the independence referendum, only 43% could be present because of the Spanish national police making efforts to prevent the people from voting. The ruling separatists in the Catalan parliament then declared independence on 27 October. Angered by that, Madrid imposed direct rule by invoking Article 155 of the constitution – a first for Spain. The Spanish government sacked the Catalan leaders, dissolved parliament and called a snap regional election on 21 December 2017, which nationalist parties won. Carles Puigdemont, the former Catalan president, fled but is wanted in Spain accused of rebellion, as are four who fled with him. A group of 12 Catalan leaders are currently on trial in Madrid, and some have spent months in pre-trial detention. Finally in June 2018, Catalan nationalists regained control of the region from Madrid’s direct rule after a new government was sworn in.
In the case of China to the modern concept of sovereignty was only introduced in the 19th century via unequal treaties by the western concept. In this case it was not a question of the rule of international law between equal and sovereign states but instead based on inequality between the strengthening British Empire and the increasingly weakened Chinese Empire. This was further worsened by the fact that equality was not at the outset with the non-European countries. After that for the sale of Opium which opened up China internationally a major part of China’s sovereignty was lost. This was gradually restored after the formation of the People’s Republic of China in 1949 where sovereignty as a word was used to restore national strength and safeguard political independence.
Will the concept of sovereignty excluding national security and politics still last or will it fade away with time?
We have talked about how the modern society has vastly changed what sovereignty stands for today. Things like globalization have drastically brought down the pillars of sovereignty. So, with the world boundaries slowly blurring away, will sovereignty still have a place in this world? And will it still result in even more conflict in laws?
Given that sovereignty is a very old concept made by a plethora of philosophers from their own era, and globalization infringing on sovereignty in a number of different areas and ways, affecting the whole world be it the area of international mobility of capital, goods and services, growth and emergence in global, regional and transnational technical cooperation in politics and a number of other institutional areas one may be very inclined to think that Hey! Sovereignty is going away for good! But it can never be completely so because sovereignty has its roots in the identity of a state, of every individual and about their preservation in a world which could otherwise collapse into a herd of sheep-like people just aimlessly roaming around.
First the fact that we had to make an exclusion at the very onset in the question about security and political decision making because those are the very foundation of a nation, that they be able to govern themselves without interference from outside countries. Second, is the factor of technology, due to which the old industrial age is slowly fading away and a new era of information society is coming up. Knowledge has always conferred power on those who have it and know how to use it, and the proliferation and dissemination of information to huge numbers of people can be, and more often than not is, a precursor to a shift in the power
structure. But the effects of the information revolution go even deeper: the very nature and definition of national sovereignty is being altered. The currently accepted tenets of national sovereignty, like most man-made concepts, did not emerge full-blown upon a waiting world, but evolved over time. Those with a vested interest in any given definition want to sustain their own power, and naturally resist any change which might undermine their authority. Perhaps one of the first organized presentations of a concept of sovereignty appeared toward the end of the sixteenth century from the French scholar, Jean Bodin. He argued for the unlimited and autocratic power of the state unrestrained by law. This idea was embraced by kings but challenged by others, including Johannes Althusius, who argued that the state’s power was limited by the laws of God and nature and by the social contract between the state and the governed. It was left to the great Dutch jurist, Hugo Grotius, to give us the definition of sovereignty that exists more or less intact to this day. Grotius defined sovereignty in broad terms as “that power whose acts are not subject to the control of another, so that they may be made void by the act of any other human will.”
In terms of international law and human rights too, previously where the concept of sovereignty was absolute and what happened within the state borders was the concern of that state only and when there was an absolute polarization between human rights and sovereignty has now faded away. It was the Westphalia treaty which first coined the notion of a nation state. Yes, it is a fact that states are losing a lot of segments of their contemporary sovereignty as in, various international campaigns on things including anti-slavery campaign, the labor movements and women’s rights activism, the notion that every individual’s rights should be protected globally has gradually gained international legitimacy and diffused throughout the world, sparking many direct and indirect political and social changes in various corners of the globe. This growing commitment to global human rights by national governments is remarkable considering that these human rights treaties essentially constrain their sovereign rights while providing few tangible short-term benefits for them.
Thus, to conclude it is safe to say that sovereignty is losing a lot of ground but has not lost the war just yet.
Conclusion
After reading various articles, reading different opinions and forming a core outlook on this subject, I think it is safe to say that although sovereignty is not going away just yet (sorry to the New World Order believers), the 200+ nations thanks to a capable leadership and a new generation of thinking has managed to bring the conflicting laws damage down by quite a bit. The conflict is also brought down by methods such as international arbitration, mediation and other methods to curb the gap. Here the conflict of laws and the sovereignty of a state seem to be directly proportional wherein, if the state chooses to let some of its self-determination slide then the conflict arising in the laws also dials down but the same is also true for the opposite. Thus, with the evolving society and in the age of globalization, borders will continue to blur and new laws will continue to conflict, but in the end, it serves its purpose wonderfully as when resolved, it is this conflict which leads to the upcoming of a fruitful solution.
References
[1] Sovereignty has been defined as ‘the supreme authority’ in an independent political society.”. [ Union of India v. Sukumar Sengupta, (1990) Supp SCC 545, 557 (SC)]
[2] Jambholkar, L. Conflict of Laws
[3] Nayar, J. (2014). On the Elusive Subject of Sovereignty. Alternatives: Global, Local, Political, 39(2), 124-147. Retrieved from http://www.jstor.org/stable/24569412
[4] yinka Olomojobi & Omoigerale Omonye, Contested Sovereignty and Conflict: Between Spain and Catalonia, 7(1) russian Law Journal 138– 153 (2019).
[5] Wriston, W (1988). Technology and Sovereignty. Accessible on https://www.foreignaffairs.com/articles/1988-12-01/technology-and-sovereignty
[6] Sevastik,P (2013). Aspects of Sovereignty Sino-Swedish Reflections. Martinu’s Nijhoff Publishers: Leiden.
[7] (Brysk, 2000; Landman, 2005; Risse et al., 1999; Ron, 2000; Thomas, 2001; Tsutsui, 2004).
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