State Sovereignty at Stake

(Courtesy: Chiran Jung Thapa)

Preservation of state sovereignty against globalization and other encroaching paradigms have been at the heart of the contemporary debate in international affairs. But in Nepal, while some national leaders remain unfazed, most are incognizant of such debates. Hitherto, the spotlight in Kathmandu has been grabbed by the demands of proliferating agitating groups and the parlous peace process. But in the meantime, issues concerning national sovereignty have taken backseat and its erosion seems blithely ignored.

Both internal factors and external interference are increasingly eroding Nepal's sovereignty. Since the formation of the transitional governing authority in last April, the number of seditious groups across the country has soared, and contempt towards authority is widely prevalent. On the other hand, hordes of national leaders have taken the southern (Indian) sojourn more frequently for obvious reasons. And the growing significance and clout of foreign emissaries is widely reflected by the coverage received in the national media. Besides that, the United Nations mission (UNMIN) bestowed with a mandate to assist the Nepali peace process has been a welcome intervention.

Sovereignty is the most fundamental criteria for statehood. It is a broad notion reflecting different dimensions. In conventional terms, it is the possession of unilateral decision-making authority in determining one’s policies without interference. Further, it is the right to exercise such supreme political authority over a given geographical area. The holder of sovereignty derives this authority from some acknowledged source of legitimacy. And this legitimacy could be the constitution, international law, natural law, divine mandate, or hereditary law.

The concept of sovereignty can also be further divided into three distinct categories: (a) internal domestic sovereignty, (b) international legal sovereignty, and (c) Westphalian sovereignty. Internal domestic sovereignty refers to the existence of a single, stable and supreme political state authority, unchallenged by other actors within a given territory. International legal sovereignty refers to the mutual recognition of states (here a state is recognized as an independent political entity in the international political system which does not answer to any foreign power). As for the Westphalian sovereignty, its central premise rests on the notion of non-intervention in the internal affairs of other states.

Since the beginning of modern history, the Monarchs from the Shah dynasty had been regarded as the sovereign authority of Nepal until the 2006 uprising. Until 1990, the Monarch was the supreme ruler of the land. No other authority superseded the Monarch's authority, and only the Monarch held the right to exercise sovereign powers over Nepali territory. Although the brief stint of a multiparty government system in the late fifties and the Panchyat system that was later introduced in 1962 ushered in elected representatives, the core authority still remained with the Monarch.

After the promulgation of the 1990 constitution, however, the Monarch's supreme authority was diluted but not completely removed. Although the constitution clearly stated that the sovereignty was vested and inherent in the people, the Monarch still retained crucial prerogatives regarding sovereignty.

By and large, the subtleties in the 1990 constitution still acknowledged the Monarch as the sovereign authority. He had carte blanche and could veto any decision made by an elected authority. For instance, any enactment of law required the Royal seal of approval. The article 115 of the constitution conferred unilateral emergency powers to the Monarch in case a grave crisis regarding the sovereignty or integrity of the nation arose. Article 31 granted the Monarch with an absolute legal immunity. The Monarch also held special prerogatives such as the power to grant pardons to any sentence passed by any court or administrative body. The Monarch was also the supreme commander of the Army and had the power to decide on executive and judiciary appointments. Furthermore, he was considered the symbol of national unity, and was conferred the duty of preserving and protecting the constitution

Things changed, however, after the April uprising. The new transitional constitution drafted by the victors of the April uprising jettisoned all the royal prerogatives. Similar to the previous constitution, the first line in the preamble of the constitution valiantly declared sovereignty to be vested in the Nepali people. The new transitional constitution expunged everything regarding the Monarchy that was previously engraved in the 1990 constitution.

With the removal of Monarch's previous prerogatives, and the enshrinement of popular sovereignty in the constitution, it would theoretically signify the heralding of popular sovereignty. But in reality, popular sovereignty is yet to be legitimized.

The primary issue that negates the notion of popular sovereignty is the legitimacy of the governing authority that promulgated the constitution. The central tenet of popular sovereignty is based on the consent of the governed. The current governing authority derives its authority from the April uprising. While the April uprising deserves some credit, it cannot be translated into inviolable legitimacy. If uprisings were the universally accepted norm to institute a governing authority, then elections would be obsolete. The only credited mechanism to garner such inviolable and legitimate consent is through free and fair election, and Nepal has not held elections for the House of Representatives since1999.

Essentially, it is not just the obscure notion of popular sovereignty, but what is more important is the innumerable other transgressions that are eroding Nepal's sovereignty. As a matter of fact, all three categories of sovereignty are being eroded.

What is critically eroding the domestic-internal sovereignty is the rise in the number of seditious groups across the country and the governing authority's inability to assert control. It would not be far-fetched to state that there has been a complete break down in the enforcement of law and order. In the last thirteen months, there have been more groups clamouring the governing authority with demands than Nepal has experienced ever before in its history. Every conceivable congregation ranging from professional groups to criminal gangs have managed to defy state’s authority with their ever increasing demands. The beleaguered governing authority in the meantime has caved in to those demands without any regard to rationality or legality, and seems to be quickly loosing its grip.

All the governing authority seems capable of is enacting new laws, but sans capability to enforce them. As the law enforcement agencies are emasculated and demoralized, contempt towards authority is on the rise.

Lawlessness in the Terai region adequately drives this point home. The Terai region has been ungovernable for months now. Numerous groups are openly challenging the authority of the state and carrying out activities that corrode the state's sovereign authority. And the state has displayed no assertive response to check such activities.

It is not just in the Terai region, however, but all across the country transgressions against the legal system have proliferated. Whether it is groups enforcing chakka jams (halting traffic) and Nepal Bandhs (complete shutdowns) or those imposing blockades of the highways, such actions challenge the authority of the state. And when such challenge is unmet with befitting law enforcement, it precipitates the erosion of domestic sovereignty.

When it comes to the international legal sovereignty, it is the supine conduct of the Nepali leaders and the domineering character of the southern neighbour and other foreign entities that are eroding Nepal's sovereignty. Of course, the political landscape of impoverished nations is prone to external interference. However, the current series of events clearly expose the towering leverage the foreign elements have in Nepal's internal affairs.

The central premise of International legal sovereignty is founded on the notion of mutual recognition of a state as an independent political entity. What this essentially means is that any independent state has unilateral decision making authority when it comes to the internal matters of the state. Also, the state is not answerable to any foreign entity when it comes to internal matters.

Nepal's current status quo however, clearly contradicts the notion of International legal sovereignty. Historically and more so in the current context, Nepal's southern neighbour has wielded enormous influence in Nepal. It is quite clear that the victors of the April uprising owe their successful putsch to the southern neighbour. They certainly feel indebted for the neighbour's assistance. And perhaps to express their gratitude for assisting them, almost every major decision regarding Nepal has been allowed to cruise through the corridors of the south block for acquiescence.

Also, the celebrity status enjoyed by certain foreign emissaries in Nepal alarmingly exhibits the growing influence of foreigners in internal affairs of the state. Some emissaries have received such wide coverage in the media that it seems as if they were running the show. Clearly, certain emissaries hold more clout and significance in Nepal than most national leaders. Regardless of the preciseness of theirs statements, only in Nepal can one hear such frequent remarks by foreign emissaries on internal matters of the state. Additionally, the ease and frequency with which the emissaries have managed to meet the head of state demonstrate the magnitude of leverage wielded by external forces.

Such proceedings, of allowing foreign entities to make decisions regarding the internal matters of Nepal critically violate the notion of international legal sovereignty.

Besides the international legal sovereignty, Westphalian sovereignty has been critically eroded as well. The entry of UNMIN and India's role in brokering the peace process are both interventions but with different twists.

Primarily, it was the southern neighbour that intervened in the Nepal's internal affairs by bringing together two of the “protagonists” of the Nepali conflict. The peace process was brokered under the behest of the southern neighbour. Had the neighbour not strong-armed the rebels and the leaders of the seven-party-alliance (SPA), the political landscape would have been much different. The southern neighbour also played a cardinal role in enabling the coronation of the SPAM alliance. And following their ascendancy to power, SPA leaders of all creeds have flocked in hordes for a southern sojourn in hopes of receiving blessing for their political ventures.

On the other hand, the UN waltzed in because it was invited by both the SPA and the Maoists. Although the UN assistance was requested by the “protagonists” to assist in the peace process, its involvement is clearly an intervention by a foreign entity. The “protagonists” are Nepali, the conflict occurred in Nepal, so the peace process is clearly Nepal's internal affair. Regardless of Nepal's willingness or unwillingness, any involvement of a foreign entity in Nepal's peace process is an intervention in the internal affairs of the State. And any intervention by a foreign entity violates the notion of non-intervention - which in turn corrodes the concept of Westphalian sovereignty.

Indubitably, erosion of national sovereignty demands highest priority and it necessitates exploration of mitigating mechanisms. The first mitigating measure is free and fair elections. Until and unless a free and fair election is conducted to institute the representatives people choose, there is a lingering issue of illegitimacy tagged to any presiding authority. Only when people are able to institute representatives through free and fair elections, can an inviolable legitimacy be established.

Once the representatives acquire the consent of the governed, the issue that demands exigent attention would be law enforcement. Current delinquency of seditious groups has been eroding the idea of legitimacy and any notion of law and order. The erosion of domestic sovereignty directly stems from the inability of the authorities to enforce the existing law. When the sovereign authority simply has the capacity to enact laws but lacks enforcement capabilities, it critically undermines its own power. This in turn translates into erosion of sovereignty. Hence, in order to curb such insubordination, the sovereign authority has to enforce the laws where it is being criminally flouted.

Another critical measure to secure national sovereignty would be to pay less heed to foreign powers. Certainly Nepal's precarious geo-strategic location of being landlocked between two giant neighbours makes the conduct of international affairs arduous. And certainly the impoverished status necessitates reliance on foreign benevolence. However, it does not imply that the state has to completely submit to the diktats of foreign entities.

If attainable, wielding influence on other states to promote national interests is an intrinsic nature of all nation-states. Given the aspiring nature of two rising superpowers that Nepal borders, it would be naive to discard a coercive demeanour in interstate relations. However, it would be puerile to simply accuse external factors for the internal deficiencies. It is the lack of internal cohesiveness that invites external interference. And in Nepal’s context, the political leaders are clearly allowing foreign elements to meddle in Nepal's internal affairs.

There must be a national objective to reduce external interference. And it is not impossible to attain that state of being. As long as the leaders stand as an embodiment of the popular will, there is no reason to exhibit pliancy. If there is a unanimous consensus amongst the leaders to maintain a strong determination to be indomitable, foreign interference can be minimized. Then only can Nepalis have more say in their own affairs and be able to safeguard the country’s sovereignty.

In highlighting the imperatives for safeguarding state sovereignty, what can be stated with certainty, is that probably no state in the current international system enjoys absolute sovereignty. However, a sovereign authority within a state must be able to at least effectively exercise unilateral control on its territory. Simply scribbling sovereignty in the constitution and trumpeting an obscure accomplishment is not a substitute for strategy. Given the current chasm between proclamation and implementation, a more effective strategy for safeguarding state sovereignty is both needed and available.

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