Chicago Journal of International Law


Elaborating on current understandings of sovereignty seems, on its face, to be an exercise in futility. Although several international documents address the question of who is entitled to status as a sovereign entity, a realistic approach suggests that the only rights guaranteed to a would-be sovereign entity are those that it can back by force (deriving either from military might or the force-by- proxy that accompanies political or economic influence). The prospect of an international legal standard for sovereignty is appealing, however, because it holds out the promise of adjudicating competing claims for territory, as well as political legitimacy, without resorting to violence or prolonged political upheaval. Current standards of sovereignty suffer from several flaws that impair their ability to adjudicate conflict definitively and equitably. They focus too narrowly on traditionally recognizable groups such as "indigenous peoples," and place a strong emphasis on historical conditions such as colonization. They urge international organizations and nation-states to adopt their standards and policies on normative grounds. In doing so, current standards fail on both a pragmatic and equitable level. Guilt-saturated normative rhetoric offers little more than a weak incentive for nation-states to adopt doctrines such as those promulgated by the International Labour Organisation ("ILO'). Moreover, fashioning a doctrine for sovereignty out of a disjointed mixture of morally charged qualities and conditions leads to judicial outcomes (such as Hingitaq 53, discussed below) that seem at odds with the desire to bestow greater sovereignty on communities where appropriate. Finally, the lack of a pragmatic foundation makes such doctrines inequitable: rather than applying readily ascertainable standards to communities with strong claims to sovereignty, judicial entities, such as the Denmark Supreme Court, allow sovereignty claims to stand or fall on seemingly arbitrary criteria. [CONT]