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National Observer Home > No. 51 - Summer 2002 > Articles

Why Sovereignty Matters: The Erosion of Democracy

GEOFFREY DE Q. WALKER

Only temporarily overshadowed by the November 2001 Federal election is a controversy quietly raging in Australian political and legal circles that has brought into sharp focus the place of national sovereignty in an age of expanding global institutions and challenged the long-term future of the independent nation-state.

The immediate issue is the possible ratification of the treaty establishing the International Criminal Court, which supporters such as the Law Council of Australia say provides a better way of prosecuting perpetrators of genocide and other international crimes. Critics counter that the treaty is not confined to genocide or similar offences but extends to acts not normally considered major crimes, such as “outrages upon personal dignity”. They argue that an unfriendly foreign government could use the new procedures against Australians on peacekeeping duties. Australia’s view that there were no grounds for prosecution, or even acquittal or a light sentence by an Australian court, could be treated as a “non-genuine” exercise of domestic jurisdiction entitling the I.C.C. to prosecute.

At the core of the controversy is the fact that the prosecution and trial of one’s own citizens is an essential part of sovereign power and that yielding it to an outside body is a surrender of national sovereignty. For that reason most countries have not ratified the treaty, including the United States, Switzerland, Israel, Russia, China, Indonesia, Japan and all the other nations of South, East and Southeast Asia. When Parliament rose for the Federal election, the Standing Committee on Treaties had not finished its investigation of the I.C.C. treaty. Its recommendation on whether or not Australia should ratify is expected early in the new year, and sovereignty issues are likely to play a part in the outcome.

Does sovereignty still really matter? In international law, sovereignty means that nations are the final law-making and law enforcement authorities over their own territory, holding the exclusive right to the use of internal force. Conversely, each nation has a legal right to a safe and independent existence, without interference from outside governments or organisations. This crucial non-intervention principle is enshrined, at least theoretically, in the United Nations Charter.

This definition of sovereignty and of the pattern of international relations to which it has given rise is known as the “Westphalian model”, after the 1648 Peace of Westphalia that ended the Thirty Years’ War, the most sanguinary conflict Europe had ever seen until the twentieth century. More broadly, Westphalia concluded one hundred and fifty years of conflict resulting from a pattern of universal intervention on religious or strategic grounds. By so doing, it saved innumerable lives. National sovereignty had long been a recognised legal principle, but Westphalia entrenched it as the basis of all international relations. It constructed a system to preserve peace by separating the advocates of rival values while containing and monopolising internal vio- lence.

The national sovereignty principle empowers smaller states by specifying their rights. For that reason empires have never liked it. During the eighteenth and nineteenth centuries the European powers in their drive for colonial empires circumvented it by engineering provocations to justify conquest or by claiming to seize lands where no-one was in charge — the principle of terra nullius (a phrase used in debates over native title for its rhetorical impact but which actually has nothing to do with land rights).

The sovereignty of the nation-state guarantees equality before the law, a key element of any system based on the rule of law, domestic or global. This is a huge advantage of sovereignty from Australia’s viewpoint. Despite its physical size, Australia will never be more than a minor power. Our continent’s sheer aridity will see to that. The non-intervention principle enshrined in the Westphalian system is a significant protection for weaker states such as Australia. Any erosion of it through well-intentioned treaty-mongering or “global governance” bandwagoning could have unexpected results for our rights as a people and ultimately our national survival.

The other great role of national sovereignty stems from its close links with democracy. The national borders so derided by globalisers serve a vital purpose by identifying the groups of people entitled to participate in the government of particular land areas. They define the political entity and are the source of the individual’s democratic rights. Today they enable peoples to cushion the effects of economic globalisation by making special provision for adjustment in areas that need it.

Promoters of the One World Government model never mention that there is no possible way in which a global government could be democratic. Even assuming one vote per adult and no ballot fraud, a small nation like Australia would be permanently outvoted by billions of people who care nothing for our welfare, our democracy or our national survival.

Nor would the rule of law be likely to endure in a world without borders. To date the United Nations has shown little inclination to live up to its own charter, and its courts and committees have yet to earn a reputation for dispensing impartial justice according to law. Double standards abound. After the United States was expelled from the U.N. Human Rights Committee recently, it was replaced by the Sudan, which tolerates an open slave trade, and by China, which has practised real genocide in Tibet. For these and similar reasons there is little popular support anywhere in the world for abolishing the nation-state in favour of global governance. As the outcome of the federal election rather confirms, it is an élite-driven cause promoted by international bureaucrats and unelected N.G.O.s (Non-Government Organisations).

The global governance movement’s tendency to undermine democracy is already evident in the transfer of domestic policy-making power to international bodies whose policy choices reflect the preferences of bureaucratic élites, of foreign governments (unelected for the most part) and of N.G.O.s.

There are no constitutional checks and balances in this procedure. It is a process rather like money-laundering, with controversial policies being sent overseas, repackaged, and reimported in the guise of “international norms”. Dire warnings that Australia must ratify them or else become an “international pariah” help to inhibit debate. This “policy-laundering”, which enables activist lobbies to make a detour around the Constitution and defeat the people’s democratic rights, peaked when Gareth Evans was Foreign Minister. It has been reined in under John Howard and Alexander Downer, but the revival of the “international pariah” rhetoric aimed at stampeding the government into ratifying the radical I.C.C. treaty and the still one-sided Kyoto protocol shows that it could take off again in the near future.

The Commonwealth Constitution nowhere gives the government the power to delegate legislative, executive or judicial power over Australians to outside powers. The problem, however, is that the Constitution contains no transparent or democratic procedure for ratifying treaties. It is a purely executive act that can be done secretly by the Minister (nominally, the Governor-General-in-Council). Gareth Evans used to table treaties before Parliament in twice-yearly batches. Two-thirds had already been ratified before Parliament was even told of their existence. Three-quarters lacked so much as Cabinet approval.

This could happen because when the Constitution was being drafted the Commonwealth was deliberately not given the power to make treaties. It was assumed that Britain would remain the treaty-making authority for all the Dominions. With the historically rapid fall of the British Empire after 1916, Canberra inherited that power by default, but without the democratic safeguards, such as ratification by the Senate, that would have been provided if the treaty-making power had been in the Constitution from the start. The extreme interpretation of the external affairs power adopted by a bare majority of the High Court in the 1983 Tasmanian Dams case meant that a United Nations committee recommendation or a treaty negotiated and ratified in secret can in effect amend the Australian Constitution without the approval of parliament or of the people voting in a referendum. This has left Australia acutely vulnerable to destabilisation as well as to erosion of its sovereignty by the policy laundering industry. The Coalition’s reforms to the treaty ratification process lack legal backing and would be jettisoned by a future Labor government. While legislation is still needed to implement a treaty within Australia, the minister’s ability to present parliament with a ratified treaty as a fait accompli, coupled with the lobbying firepower of special interests, media and N.G.O.s, are usually enough to lever the necessary bill through the Senate.

A much more open and thorough debate is needed before Australia loses more of its effective sovereignty through this process. As the Finnish international relations expert Raimo Vayrynen puts it, “the effective loss of sovereignty without the establishment of representative bodies at higher levels of international organisations is probably the most undemocratic combination imaginable”. He argues instead for “ever-deepening interdependence rather than truly boundary-crossing processes of integration”.

Britain’s step-by-step subordination within the European Union contains lessons for Australia. When the United Kingdom adopted the Rome Treaty in 1972, the British people were misled by their own leaders on both sides of Parliament who assured them that the nation was doing no more than joining a customs union and that its sovereignty would remain undiminished. As they contemplate the remnants of their independence today, many Britons console themselves with the thought that the United Kingdom could still withdraw from the European Union if matters became intolerable. But that belief is not shared in Brussels, Paris or Berlin. The move to create an European Union army and gendarmerie raises ominous possibilities should the European Union decide to treat a future withdrawal as an act of rebellion.

Following the centenary of Federation there is an historical irony in the fact that while in 1901 Britain was a sovereign state and Australia was not, a century later the positions are reversed. But if we are tempted to feel smug about that, we should remember that the Asia-Pacific Economic Co-Operation treaty (A.P.E.C.), of which Australia is a member, is designed to develop into our region’s equivalent of the European Union.

Two main lines of argument are put forward in the assault on national sovereignty. One is that the deepening of cross-border relations and communications has made the nation-state obsolete. A senior U.N.E.S.C.O. official interviewed for a French documentary recently screened on S.B.S. proclaimed that the growth of the Internet alone makes it essential “that the United Nations should govern the world”. But, as Dr. Vayrynen points out, interdependence can flourish without integration. Besides, advances in communications technology have historically worked in both directions, towards broadened consciousness and also towards a reinforced sense of the significance of identity and difference. The invention of printing was a major factor in the growth of the nation-state. It brought home to people that Europe comprised different language communities, thus undermining the old idea of a unified Christendom.

Then the global governance advocates declare with a kind of stage shudder that the last century’s world wars were the result of national sovereignty. But World War I was a clash of multinational empires: the British, French, German, Austro-Hungarian, Russian and Ottoman. Even Belgium was an imperial power with vast African colonies. And empires have always hated the nation-state. Adolf Hitler used German bitterness over the Versailles treaty to attain power but planned to build a greater Europe in which national borders were erased — a European Economic Community (under that name) dominated by Germany and France, with its own institutions, currency, foreign policy and army. In the important but almost forgotten compilation of Hitler’s private political utterances titled Hitler Speaks, his former confidant Hermann Rauschning recorded the dictator as declaring: “The concept of the nation has become meaningless. The conditions of the time compelled me to begin on the basis of that concept. But I realised from the outset that it could only have transient validity. The ‘nation’ is a political expedient of democracy and liberalism. We have to get rid of this false concept and set in its place the concept of race.” The former Soviet bloc likewise showed imperial disdain for nation-states, by swallowing an average of one country per year until it fell.

The cause of war is not national sovereignty but lack of democracy. It is now accepted, as Gareth Evans himself has pointed out, that democracies are unwarlike. History shows a disinclination for established democracies to go to war against each other. Democracies share a fundamental principle of legitimacy that results in peace. Under popular government, strident nationalism is confined to the sporting field. As stable democracies are still a minority in today’s world, peace and progress are best served by the spread of democracy and the rule of law. With them will come greater international understanding and interdependence, aided by the communications revolution. Australia’s future lies in encouraging that movement, not in the gradual surrender of our independence to outside bodies that may not have our best interests at heart. The national sovereignty principle has protected Australia’s self-government and democracy. Australia should protect it in return.

 

 

National Observer No. 51 - Summer 2002