self-determination. The Treaties of Westphalia (1648),
14 which ended the Thirty
Years War, threw the cornerstone of a new political order in central Europe based on
the notion of peaceful co-existence of sovereign states. Each sovereign entity
consented to refrain from interfering in another state’s internal matters, where the
latter exercised supreme authority over its territory. Since then, for the past centuries,
the main behavioral pattern in the relationship between states has been one of either
peaceful coexistence or conflict of sovereignties.
15
The history of the concept is far from linear, as there have been shifts in its
understanding.
16 Throughout time, sovereignty has been more or less “plastic”,
having served many purposes and justification strategies throughout the history of
international relations.
17 A critical view of international law will credit to the idea of
sovereignty, amongst others, the perverse colonialist rule of Western European
powers over large portions of the world. As the European states were the only
ones truly sovereign (independent externally and supreme internally), the rule of
non-interference applied only among themselves, and consequently excluded the
colonies and their peoples. By that time, the “civilizing mission” embraced by the
religiously backed European sovereigns functioned as a moral justifier for practically
any sort of colonialism.
18
As decolonization intensified in the second half of the twentieth century, for a
variety of reasons, a plethora of erstwhile colonies joined the international society as
sovereign entities. One by one, they became members of the United Nations and
expected to be protected by the doctrine of non-interference by sovereign states in
the international affairs of each other. Again, to a critical school of international law
and politics, what followed was far from the end of arbitrary interventionism in other
state’s businesses. For that, the old Christian-based justification of the higher
civilizing mission could not offer the moral ground for further interference and
control.
The alternative did not take long to be molded. In the aftermath of WWII, “the
rhetorical language shifted to a concept that came to have new meaning and strength
14 The Treaties were negotiated upon and signed in the cities of Münster and Osnabrück, and the
principle of peaceful co-existence between sovereign states can be said to have shaped the order of
today’s Europe.
15 Pursuant to the premise of rational choice theoreticians, states are rational actors which act to
pursue identifiable self-interests. See Goldsmith and Posner (2005), p. 5.
16 The classical of Jean Bodin marks the maturity of the debate on sovereignty. According to the
French scholar, sovereignty would represent simultaneously the suprema potestas of state entities
within their territory, and independence in face of other states in the international community.
17 Koskenniemi (1998), pp. 240–245.
18 From the conquer of the Indigenous empires in America by Spaniards and Portuguese to the
subdue of the Indian subcontinent by the English, the “civilizing mission” fulfilled a powerful role
in justifying the colonial model of spoliation. Such “mission” consisted of forcing, by religious and
military means, an allegedly virtuous process of enlightening the barbaric and noncivilized people,
but it did not go unquestioned. For a staunch critique against the flawed arguments of Western
colonial powers, particularly Spain, enabling the conquest by force, see de Las Casas (1552).
4.1 Sovereignty and Jurisdiction in International Law
89
14 which ended the Thirty
Years War, threw the cornerstone of a new political order in central Europe based on
the notion of peaceful co-existence of sovereign states. Each sovereign entity
consented to refrain from interfering in another state’s internal matters, where the
latter exercised supreme authority over its territory. Since then, for the past centuries,
the main behavioral pattern in the relationship between states has been one of either
peaceful coexistence or conflict of sovereignties.
15
The history of the concept is far from linear, as there have been shifts in its
understanding.
16 Throughout time, sovereignty has been more or less “plastic”,
having served many purposes and justification strategies throughout the history of
international relations.
17 A critical view of international law will credit to the idea of
sovereignty, amongst others, the perverse colonialist rule of Western European
powers over large portions of the world. As the European states were the only
ones truly sovereign (independent externally and supreme internally), the rule of
non-interference applied only among themselves, and consequently excluded the
colonies and their peoples. By that time, the “civilizing mission” embraced by the
religiously backed European sovereigns functioned as a moral justifier for practically
any sort of colonialism.
18
As decolonization intensified in the second half of the twentieth century, for a
variety of reasons, a plethora of erstwhile colonies joined the international society as
sovereign entities. One by one, they became members of the United Nations and
expected to be protected by the doctrine of non-interference by sovereign states in
the international affairs of each other. Again, to a critical school of international law
and politics, what followed was far from the end of arbitrary interventionism in other
state’s businesses. For that, the old Christian-based justification of the higher
civilizing mission could not offer the moral ground for further interference and
control.
The alternative did not take long to be molded. In the aftermath of WWII, “the
rhetorical language shifted to a concept that came to have new meaning and strength
14 The Treaties were negotiated upon and signed in the cities of Münster and Osnabrück, and the
principle of peaceful co-existence between sovereign states can be said to have shaped the order of
today’s Europe.
15 Pursuant to the premise of rational choice theoreticians, states are rational actors which act to
pursue identifiable self-interests. See Goldsmith and Posner (2005), p. 5.
16 The classical of Jean Bodin marks the maturity of the debate on sovereignty. According to the
French scholar, sovereignty would represent simultaneously the suprema potestas of state entities
within their territory, and independence in face of other states in the international community.
17 Koskenniemi (1998), pp. 240–245.
18 From the conquer of the Indigenous empires in America by Spaniards and Portuguese to the
subdue of the Indian subcontinent by the English, the “civilizing mission” fulfilled a powerful role
in justifying the colonial model of spoliation. Such “mission” consisted of forcing, by religious and
military means, an allegedly virtuous process of enlightening the barbaric and noncivilized people,
but it did not go unquestioned. For a staunch critique against the flawed arguments of Western
colonial powers, particularly Spain, enabling the conquest by force, see de Las Casas (1552).
4.1 Sovereignty and Jurisdiction in International Law
89