Territorial Disputes and State Sovereignty

International Law and Politics

Jorge E. Núñez

• Publisher: Routledge
• Year: 2020
• Print ISBN: 9780367201388
• eBook ISBN: 9781000082364
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Law Theory & Practice
• Index: Politics & International Relations

Adopting a multi-disciplinary approach, this book opens new ground for research on territorial disputes.

Many sovereignty conflicts remain unresolved around the world. Current solutions in law, political science and international relations generally prove problematic to at least one of the agents part of these differences. Arguing that disputes are complex, multi-layered and multi-faceted, this book brings together a global, inter-disciplinary view of territorial disputes. The book reviews the key conceptual elements central to legal and political sciences with regards to territorial disputes: state, sovereignty and self-determination. Looking at some of the current long-standing disputes worldwide, it compares and contrasts the many issues at stake and the potential remedies currently available in order to assess why some territorial disputes remain unresolved. Finally, it offers a set of guidelines for dispute settlement and conflict resolution that current remedies fail to provide.

It will appeal to students and scholars working in international relations, legal theory and jurisprudence, public international law and political sciences.

Part 1

1 Territorial disputes in law and politics

Introduction

There are many disputes in which international agents¹ claim exclusive and conflicting sovereign rights over the same territory. These confrontations have a particular feature: their solution seems to require a mutually exclusive and collectively exhaustive relationship between the agents because only one of them will gain acknowledged sovereignty over the territory under dispute, a sovereignty the other must acknowledge. Indeed, sovereignty is an absolute concept: exclusive and not shareable.²

Contemporary events such as the rise of the Islamic State and the failure and potential dismemberment of states from the Caucasus to the Middle East mean that recognition of sovereignty as a binding legal norm is not static within a nation; but the concept of transferable, shared sovereignty remains a major unresolved topic in international law, international politics and international relations. Events such as the Ukrainian Crisis and Russia’s foray into Crimea demonstrate that sovereignty is dynamic and fluid, flowing at times from one country to another by some event of political restructuring within the international community or the shifting sands of geopolitics.

1 The broad expression “agents” is intentional to capture the nature of territorial disputes and sovereignty conflicts. It is usually the case that states are involved. However, states can be sovereign de facto or de jure or both. Moreover, other kinds of “agents” such as pseudo-states, failed-states and even nations sociologically defined but not legally recognized as states, to name a few, are part in many of these disputes.

2 For the author’s previous work about sovereignty see Jorge E. Núñez, “About the Impossibility of Absolute State Sovereignty. The Modern Era and the Early Legal Positivist Claim,” in: Luca Siliquini-Cinelli, ed., Legal Positivism in a Global and Transnational Age (Switzerland: Springer, 2019); Jorge E. Núñez, Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue (London and New York: Routledge, Taylor & Francis Group, 2017); Jorge E. Núñez, “A Solution to the Crimean Crisis: Egalitarian Shared Sovereignty applied to Russia, Ukraine, and Crimea,” Europe-Asia Studies (2017); Jorge E. Núñez, “About the Impossibility of Absolute State Sovereignty: The Middle Ages,” International Journal for the Semiotics of Law 28 (2015): 235–250; Jorge E. Núñez, “About the Impossibility of Absolute State Sovereignty: The Early Years,” International Journal for the Semiotics of Law 27 (2014): 645–664; Jorge E. Núñez, “Sovereignty Conflicts and the Desirability of a Peaceful Solution: Why Current International Remedies are not the Solution,” in: David A. Frenkel, ed., Selected Issues in Modern Jurisprudence (Athens: ATINER, 2016); Jorge E. Núñez, “Sovereignty Conflicts as a Distributive Justice Issue: The Egalitarian Shared Sovereignty and a New Mode of Governance for Crimea,” in Legal Theory: Comprehension of Sovereignty in Russia, Western Europe, and the USA in the Conditions of Globalization (Ivanovo State University, 2015); Jorge E. Núñez, “Sovereignty Conflicts as a Distributive Justice Issue,” in: David A. Frenkel, ed., Selected Issues in Public Private Law (Athens: ATINER, 2015); Jorge Emilio Núñez, “The Origins of Sovereignty in the Hellenic World,” in: David A. Frenkel, ed., International Law, Conventions and Justice (Athens: ATINER, 2011). For an extensive analysis of the concept of sovereignty see Harold J. Laski, The Foundations of Sovereignty and Other Essays (London: George Allen & Unwin Ltd., 1921); F. H. Hinsley, Sovereignty (Cambridge: Cambridge University Press, 1986); Jens Bartelson, “The Concept of Sovereignty Revisited,” The European Journal of International Law 17 (2006): 463–474; Jens Bartelson, A Genealogy of Sovereignty (Cambridge: Cambridge University Press, 1995); Thomas J. Biersteker and Cynthia Weber, eds., State Sovereignty as Social Construct (Cambridge: Cambridge University Press, 1996); John Hoffman, Sovereignty (Buckingham: Open University Press, 1998); Robert Jackson, ed., Sovereignty at the Millennium (Oxford: Blackwell Publishers, 1999); Stephen D. Krasner, Sovereignty: Organized Hypocrisy (Princeton: Princeton University Press, 1999); Neil MacCormick, Questioning Sovereignty: Law, State, and Nation in the European Commonwealth (Oxford: Oxford University Press, 1999); Dominik Zaum, The Sovereignty Paradox: The Norms and Politics of International Statebuilding (Oxford: Oxford University Press, 2007); Hent Kalmo and Quentin Skinner, eds., Sovereignty in Fragments: The Past, Present and Future of a Contested Concept (Cambridge: Cambridge University Press, 2010); and many others.

The issues at stake in these disputes are highly complex, with domestic, regional and international components of varying potency. Although these differences are commonly described in legal and political sciences as territorial disputes,³ the nomenclature does not reflect their complexity and makes evident the superficial nature of the assessment.

International relations and legal and political scholarly literature offer potential remedies to solve sovereignty conflicts. These include independence, self-determination and free association. Although these remedies are useful in certain conflicts, they are futile in others. First, the assumptions, concepts and consequences one discipline may take as self-evident, logically coherent and scientifically binding may be exclusive to that community of experts and not necessarily shared by the broader scientific society or the entities in a sovereignty conflict. Hence, many conflicts remain unresolved and in a legal and political limbo. Second, studies in relation to these disputes and possible remedies for them are limited because they center only on a particular conflict or region.⁴ With this fragmented analysis of territorial disputes (fragmented because of the methodology of the science of reference, and the object of study) outcomes are inevitably of limited significance in theory and in practice.

3 Since 2000, the main publications about territorial disputes are Peter Calvert, ed., Border and Territorial Disputes of the World (London: John Harper Publishing, 2004); Rongxing Guo, Territorial Disputes and Conflict Management (New York: Routledge, 2014); Rongxing Guo, Territorial Disputes and Resource Management: A Global Handbook (London: Nova Science Pub. Inc., 2006); S.B. Jeffrey, Border Wars: Politics and Territorial Disputes (Webster’s Digital Services, 2011); David Murdoch, Territorial Disputes (CreateSpace Independent Publishing Platform, 2017); Jorge E. Núñez, Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue (London and New York: Routledge, Taylor & Francis Group, 2017); Marco Pinfari, Peace Negotiations and Time: Deadline Diplomacy in Territorial Disputes (New York: Routledge, 2012); Brendan Plan, International Law and the Adjudication of Territorial Disputes (Oxford: Oxford University Press, 2018); Jaroslav Tir, Redrawing the Map to Promote Peace: Territorial Dispute Management Via Territorial Changes (Lanham, MD: Lexington Books, 2006); Krista Eileen Wiegand, Enduring Territorial Disputes: Strategies of Bargaining, Coercive Diplomacy and Settlements (Atlanta: University of Georgia Press, 2011).

4 The bibliography in legal and political sciences on territorial disputes is either outdated or fragmented. As an example, see Paul K. Huth, Standing your Ground: Territorial Disputes and International Conflict (Ann Arbor: The University of Michigan Press, 2001). Huth offers in chapter 1 a comprehensive list of academic literature; but all entries were published before 2000 and are fragmented by discipline and geographical location.

This monograph aims to fill a major gap in law and political science, and to provide a global and inter-disciplinary study of territorial disputes that can develop general guidelines for dispute settlement and conflict resolution that current remedies fail to offer.

There are two premises underlying this research on territorial disputes and state sovereignty. First, a better understanding of international conflict requires a global and inter-disciplinary assessment. At present, scholarly literature on these differences tends to focus on a conflict, a region or a discipline. Two important consequences of this focus are that territorial disputes are not examined in their full complexity and that elements common to many of these disputes are not identified. This book addresses both these gaps.

The second focus is to define a set of key conceptual elements for the evaluation of territorial disputes in order to integrate findings from many studies and develop more general theories of international law and politics. Theoretical frameworks provide the hermeneutical means to generalize behavior in a clear, cohesive, and concise manner. They also enable subsequent studies to sharpen their focus and identify more clearly variables that may appear to be particular to a certain dispute but in fact have wider application.

This book integrates two approaches to the study of international relations, the modified realist model and case studies, to generate hypotheses about territorial disputes and state sovereignty.⁵ The modified realist model allows the consideration of the simultaneous impact of domestic- and international-level variables. Examination of case studies enables the test of the generated hypotheses. If these approaches to studying international relations can be integrated, the resulting theoretical framework should have considerable power to support better understanding of territorial disputes. At the same time, these theoretical models can be carefully subjected to empirical analysis.

General structure

This monograph has three parts.

5 For the modified realist model see Paul K. Huth, Standing your Ground: Territorial Disputes and International Conflict (Ann Arbor: The University of Michigan Press, 2001).

PART ONE questions the current methodology for studying territorial disputes in the legal and political sciences, includes the core argument, and establishes key conceptual elements.

Chapter One, the Introduction, defines the overall goal of this project, the meaning of territorial disputes and the reasons to study them, in order to offer a more integrated approach to theory building for future analysis, discussion and potential resolution of territorial disputes and sovereignty conflicts. There are many reasons for the origin and ongoing nature of these disputes: they are complex (multi-faceted) and although several sciences assess them, these sciences (and people in general) do not apply the same conceptual frame of reference. Therefore, many disagreements h...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Preface
• PART 1
• PART 2
• PART 3
• Index