The Pakistani Spectator

President Obama has signed the Kerry-Lugar Bill into law, which will triple non-military assistance to Pakistan to around $7.5 billion over the next five years. And what has been presented as a significant and positive shift in the way the US does business with us has become a political shuttlecock that is batted to and fro by our legislators and pundits. The advent of the bill has been strewn with all manner of objections, from the military feeling offended by some of its wording to a spectrum of commentators who pontificate on the KLB being an affront not only to our dignity but to our sovereignty as well. Our “sovereignty” also appears to be challenged by the operation of US drones over our territory and perhaps, but nobody seems sure, by the men who work for Blackwater and who prowl the byways of Islamabad and who knows where else. Allegedly.

The word “sovereignty” has been on the lips of, and at the end of the pen of, just about anybody capable of expressing an opinion on the matter for over a year, but there seems to be a paucity of understanding as to what the word means or implies. So how do we understand “sovereignty”? What does it mean in legal and conceptual terms? The following is not a definitive answer, and merely seeks to place a historical context around the word and the concept.

“Sovereignty” is the quality (note the word “quality”) of having supreme and independent authority over a territory or nation. It is within the power to rule and make laws and rests on a political fact for which no legal definition can properly be provided, although, as we shall see below, there have been several attempts to codify it, most notably in modern times, by the 1648 Treaty of Westphalia. It is from this treaty that most modern states derive their understanding of their territorial integrity, the inviolability of their defined borders (note “defined”) and the supremacy of the state over that of the church – which provides food for thought when considering the fact that we are an Islamic republic, wherein it may be argued that the church is pre-eminent, the state subject to a set of laws outside the temporal legislature. Where a “sovereign” reigns supreme and all powers are vested in a single individual or office attached to an individual, then that individual is said to have absolute sovereignty, a rare occurrence in the post-colonial and post-regal world. Constitutional monarchs are not “sovereign” and are limited by the legislature.

There are a number of different types of sovereignty, not all of them of interest or relevance to us here, and sovereignty is historically something of a “work in progress” with periodic redefinition to suit the needs of the age; thus, we should not be surprised to see a certain elasticity in terms of its understanding – especially by America – relative to ourselves.

For today’s purposes we may start with Thomas Hobbes, whose seminal work Leviathan (1651) introduced the concept of the social contract wherein people cooperate with one-another and join together in a “commonwealth,” submitting as they do to a sovereign power that is able to compel them to act in the common good. Hobbes asserted, firstly, that sovereignty should be absolute, because conditions could only be imposed on a sovereign if there was an outside arbitrator (parliament, for instance) who could determine that he had violated them, in which case the sovereign is clearly not the final authority. Secondly, sovereignty is indivisible, because the sovereign is the only final authority within his territory and he does not share authority with any other entity.

Hobbes asserted that this had to hold true, otherwise there would be no way of resolving conflicts between multiple authorities within a single boundary. Given the disputed nature of our own borders and territories, this makes the definition of our territorial sovereignty all the more complex and contentious. Indeed, it may be argued that our boundaries are defined in a discontinuous manner, and that not all of the territory over which the quality of sovereignty is assumed to reign is backed up by cartographic representation.

Hobbes also offered us further mental mastication by observing that if the sovereign failed to uphold his side of the social contract by ensuring their well-being and safety, then the people are released from their obligation to obey him. Pakistan is not the only state wherein the sovereign may be said to have failed to keep the compact.

Two other components of sovereignty have a particular relevance to our present condition; “de jure” and “de facto.” In the first, sovereignty is the legal right to exercise exclusive control over ones subjects; and the second is whether that control actually exists. In both cases there are “issues” – most of the tribal areas are outside the physical control of the state, and as legal entities they are not a part of the sovereign state. They are within the stewardship of the sovereign state of Pakistan, but Pakistan does not enjoy absolute sovereignty over them.

To exercise sovereignty over disputed territories or territory governed under mandate it would have to fulfil both the de facto and the de jure criteria – and it does neither. Does the governing power have sufficient strength – political or military – to compel its subjects to obey? If it does, then a kind of de facto sovereignty called “coercive” sovereignty exists. Even more importantly would argue some–are the subjects of the governing power in the habit of obeying it? Very clearly they are not across large parts of the territory of Pakistan, where the sovereignty of the state either has failed or has never truly existed in the first place.

It is generally held that sovereignty requires not only the legal right to exercise power but the actual exercise of the power of that legal authority. Simply claiming to be sovereign, or being proclaimed sovereign either by a people or indeed a political party, nor merely exercising the power of sovereignty, is enough to establish actual sovereignty. For that there has to be both de jure and de facto elements in place and functional.

The land we live in and regard as the sovereign state of Pakistan is an artificial creation. It has territorial integrity within the realms of the Treaty of Westphalia, but to suggest that the state actually exercises true sovereignty over all the land nominally within its defined borders is clearly untrue. It does not, and never has. Claims that our sovereignty has been violated need to be examined in the light of modern realities. If a drone strike on our territory originates in Afghanistan and the drone is not under our control, then our sovereignty has been violated. If the drone takes off with the tacit approval of our government from a base within our borders and strikes a target within those same borders, then our sovereignty has not been violated.

Does the Kerry-Lugar Bill violate our sovereignty as defined by Hobbes? Difficult to say definitively, but probably not. It is an American law, not a Pakistani law and we can choose to accept or reject that which it proposes. We are not forced to accept its content or conditionalities. And “sovereignty” is a complicated word.