Globalization, Sovereignty & Pakistan

This article will look upon the concept of sovereignty of states and how the ongoing phenomenon of globalization has blurred this concept by diluting the distinctions between national and international politics in the modern world where terrorism is a major threat for the world. Lastly, it will analyze the repercussions of the current NATO drone attacks on Pakistani territory on the traditional concept of sovereignty.

The sovereignty of a state implies the independence of a state under international law and its competence and right to exercise its rules or law within its clearly defined territory at its own discretion without the intervention from outside forces. The concept also includes all matters whereby the state is permitted under international law to defend its territory and safeguard the security of its citizens without stamping upon the sovereignty of other states and the rightful authority of the state to represent its citizens abroad by engaging in treaties etc.

The concept of sovereignty is not new. It was there in the form of established traditions of international relations amongst such states as Egypt, China and Holy Roman Empire. The present concept of sovereignty of a nation has its roots in agreements which were part of the Treaties of Westphalia which took place in 1648 A.D., signed by European states. The main points of the concept of sovereignty and the rights and duties of states were laid down in Montevideo Convention in 1933. These points include the following main criteria for a state’s eligibility to be declared sovereign: that a state should have “a permanent population, a defined territory, and a functioning government” (IRDC, 13). The UN Charter basically adopts and endorses all these factors in its vision of the system of international world that it strives to maintain. The UN Charter mentions the idea of the equality of all sovereign states. This equality is the foundation over which state governments forge relations with each other and participate in different organizations. This principle of legal equality of all sovereign states has a protective advantage for smaller or weaker states so that they do not come under political pressure from the more powerful states. The United Nation’s International Court of Justice (ICJ) stated in 1949 that "between independent States, respect for territorial sovereignty is an essential foundation of international relations." (IRDC, 13) The International Court of Justice has also in the past referred to "the fundamental principle of state sovereignty on which the whole of international law rests." (IRDC, 13) Aggressive actions of states towards other states are viewed as negative in the international arena because they are a menace to the very structure of the international world as they violate the very concept of sovereignty of states which forms the basis of this structure. If the base is threatened then the entire structure could collapse. It is for this reason that states have used their sovereignty itself to condemn wars and conflicts which threaten world order, peace and security (IRDC, 13).

The concept of nonintervention in a state’s domestic jurisdiction is a very important aspect of sovereignty. This jurisdiction refers to the ability of the state to govern its citizens within its dominion. This jurisdiction is either “prescriptive” or “enforcement” (IRDC, 13). Prescriptive jurisdiction is the capacity of the state to create laws within and outside its borders. Enforcement jurisdiction is its ability to implement these laws within its borders. The United Nations Charter especially bans countries from intervening in the local affairs of other countries. Article 2 (7) of the Charter states that "[n]othing contained in the present Charter shall authorize the United Nations to intervene in matters that are essentially within the domestic jurisdiction of any State or shall require the Members to submit such matters to settlement under the present Charter." (IRDC, 13)

We now turn our attention to the limits of sovereignty. The Charter of the United Nations protects the sovereignty of nations but it also addresses the issue of maintenance of international law and order. By Chapter VII of the charter, the Security Council of the United Nations can take actions or intervene in the affairs of sovereign states if they threaten world peace, or engage in aggressive actions (IRDC, 13). Simply put, sovereignty of states only matters as long as there is peace and stability amongst states and can surrender to the demands of world peace and security.

Secondly, Article 1 (2) of the said Charter states that "[a]ll Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with the present Charter." (IRDC, 13) This means that all sovereign states of the world have international obligations, which can be customary or treaty obligations, and the mere idea that a state is sovereign does not mean that it can turn a blind eye to these obligations. The Charter also directs the member states of the United Nations to cooperate amongst themselves in solving problems related to economic, social, cultural, or humanitarian issues and achieving the basic human rights and freedoms of the people. Thus, the Charter raises these issues to an international level. Sovereignty of a state therefore does not mean that a state can violate international standards of human rights within its territory and expect to get away with it from the eyes of the international community (IRDC, 13).

A challenge to the traditional concept of state sovereignty arises in the cases of those states that are unable to exercise complete authority and control over their own people and over parts of their own territory. The ability of a state to achieve complete control over these dimensions is a core aspect for a state to be truly a sovereign nation. One analyst calls these states with weak authority as “quasi-states” (IRDC, 13). Some people even have the stance that such weak or failed states should not even be part of the United Nations which essentially comprises of members that are sovereign nations, because such weak states defy the United Nations Charter Article 4 which mentions that UN membership criteria for states requires that the states “are able to carry out” their obligations (IRDC, 13). A state’s incomplete control over its population and dominion casts doubts on its ability to be able to carry out such obligations. The state’s authority is essential for the protection of basic rights and is the foundation for local as well as international law and order. The proof of the failure of a state’s sovereignty is the existence of forces within the state’s domestic population which challenge the territorial sovereignty of the state. These forces bar the state from exercising its authority over its complete territory, preventing it from delivering fundamental public goods to its population such as establishment of public security and safety of the population’s life and property. Under such circumstances, what is seen to happen is the massive outflow of refugees towards safer places and the displacement of the local population (IRDC, 13). Such consequences can prompt the United Nations Security Council to legitimize foreign intervention in such a state, under consideration for the international peace and order.

An aspect of the concept of foreign intervention is the idea of "sovereignty as responsibility," created by Francis M. Deng, the Representative of the Secretary-General on Internally Displaced Persons (IRDC, 13). According to this idea, it becomes a state’s responsibility to request or accept foreign help or intervention if the state itself is unable to deliver fundamental public goods of security, justice and peace to its population. The state becomes answerable to two entities at the same time under such circumstances: the domestic population, as well as the international community whose responsibility it is to maintain world security and peace. In effect, this idea suggests that a state’s sovereignty gets temporarily discontinued under such circumstances and the responsibility of maintaining law and order in the country now falls with the international world (IRDC, 13).

Traditionally, security has been seen in terms of connections between nations. Today, the aspect of individual security of citizens is becoming the cardinal concern for states. A state is the principal provider of this security but in the case of states with weakened authority in their territories, it is the responsibility of the international community to come to the aid of the populations at risk.

We shall now look at how this concept of state sovereignty been seen to get diluted in recent years, particularly in the rapidly globalizing world.

The concept of “globalization” is related to the concept of “complex interdependence” between nations which is relevant to the topic under discussion in this paper. Today, the territorial state is being overshadowed by non-territorial factors which include multinational corporations, transnational social movements, and international organizations (Keohane & Nye, 236). Telecommunication and air travel have reduced the world into being a “global village” and the increase in social, cultural and economic transactions mean we today are seeing a world which increasingly has lesser or softened boundaries or borders (Keohane & Nye, 236). Multiple channels of contact between nations are making the divide between domestic and international politics insignificant. The policy attitude or stance of a state’s local population gets affected by contact with populations of other states, through the media and other sources, whether this communication is organized communication or otherwise. We today are seeing a world in which economic issues are the principal concern of states and where states and people are becoming increasingly culturally, socially, and economically interdependent upon each other. Globalization, according to political scientist David Held, is the “widening, deepening and speeding up of worldwide interconnectedness in all aspects of contemporary social life” (FP, 1).

All around the globe we are seeing increasing numbers of organizations and companies connecting with people and the current recession in the world economy is not hindering them in doing so. It might even help to revive the economy in some cases to a certain extent (FP, 1). For example, the demand for the services of international charity organizations is increasing as more and more people lose their jobs in the current economic crisis. Religions and cults too may witness greater numbers of followers as hardships encourage interest in the after-life. Transnational terrorists would also not be hindered in their activities by the economic recession. Globalization is such a powerful and multiform factor in today’s world that the current economic recession cannot drastically hamper or transpose it (FP, 1).

The deeper a political situation is entrenched in the complex interdependence between nations, the more likely are the results of the political process going to be affected by transnational relations. Terrorism is one such issue in question. It is a collective problem for the whole world no matter in which part of the world a terrorist act may take place in. A nation fighting terrorism should not be left alone to deal with it, abandoned by other countries of the world. Rather that nation should be supported morally, diplomatically and militarily in its fight by the whole world.

While globalization has created new opportunities and possibilities for mankind, it has also created problems which we have never encountered before. For example, it has created new opportunities for militants to engage in acts of terrorism. The Taliban and Al Qaeda’s mobility internationally, recruitment ability, and financial resources to fund their endeavors have been aided by the factors of globalization such as greater and better communication opportunities, greater ease of travel and wider means of transportation, and permeable borders (FP 2).

In the 1990s, it was thought that economic ties were a remedy to prevent wars. Power, it was thought, would eventually pass from government hands into the hands of the private companies and NGOs. The terrorist attacks on the World Trade Centre on September 11, 2001 changed that thinking of the world. Overnight, the thinking of the world changed and these ideas went out of trend. Public security now became the topmost priority of nations. The insecurity due to the ongoing economic recession has further fuelled this cry and we have also seen an increase in public demand for greater government control in the financial sector. Skeptics of globalization argue that commercial ties amongst nations have been enfeebled due to the current global economic crisis. With the return of stronger governments, these skeptics foresee a greater intensity in the traditional power politics of the states. They cite the evidence for this in the resurgence of nationalist spirit in South Asia, Middle East, Latin America and Russia. These skeptics argue that globalization’s role in stabilizing the political situation of the world is therefore exaggerated. But we must remember that claims of a return to nationalism and strong governments are also very exaggerated. Granted that China may ally itself with Russia to counter the US in its relations with Iran, but we must not forget that Chinese and American economies are today greatly intertwined with one another (China has trillions of dollars of US debt and the US is also its main market for Chinese goods). Russia itself has been hit badly by the economic crisis and its oil revenues are falling so much so that Venezuela is calling back foreign oil companies. The crux of the skeptic’s argument is that globalization did not eliminate nationalism; rather it made it more complicated such that globalization and geopolitics exist along side each other in the modern world (FP 2).

The opposite view to these skeptics is that due to increased interdependence amongst nations as a result of globalization, the aspect of nationalism is slowly disappearing and the world today is taking on a more integrated outlook in which countries are governed more by economic and commercial concerns and the exchange of ideas and cultural and social aspects. An example is that of the European Union (EU) which comprises of nations which were formerly each other’s enemies before the late twentieth century when nationalism was on the rise. Today the countries of European Union are peaceful trade partners, working together to achieve, maximize, promote and preserve their common economic goals. The increased interaction between countries of the world has resulted in them signing more treaties with each other and becoming members of international organizations such as the International Monetary Fund (IMF) and Asian Development Band (ADB). Signing of treaties in a way mars the sovereignty of a state because it can pose limitations on the actions of states and also raise their international obligations.

The current Pakistani leadership has been caught unsuspectingly by the numbers of Taliban as well as the intensely bitter autonomy of other militant groups such as the Lashkar-e-Taiba. Recently there have started a series of NATO drone attacks on Pakistani territory. These attacks on Pakistani territory are indeed a violation of Pakistan’s sovereignty, but we must also remember that stopping the drone attacks in the tribal areas would not be a remedy against the problem of militancy because the public in those areas does not really accept Pakistani army and the United States is not very popular with them either. Pakistan could lose even its already little sovereignty in the tribal regions if something is not done soon. Pakistan has protested against these attacks but the United States argues that Pakistan has never been truly sovereign in the Federally Administered tribal Areas (FATA) as it has never been able to fully control that region ever since its independence in 1947. The United States argues that as Pakistan itself is not able to deal with the problem of militancy in the tribal region, it should allow the foreign forces to deal with the militants. I personally think that Pakistan should allow the NATO drone attacks to take place in FATA. The Taliban are becoming an increasing source of discontent and chaos in the country. They are a nuisance not only for global peace and security but also for the survival of Pakistan itself. Any attack or war against the Taliban should be welcomed in my opinion to eradicate the threat from them forever once and for all, even if it comes at the breach of our sovereignty. What use would our argument for Pakistan’s sovereignty be if Pakistan does not survive and breaks up? That would be a greater price to pay for Pakistan if it tries to defend its sovereignty at this hour. Even if we look at the principles of sovereignty as stated in the United Nations Charter, I think the NATO attacks are reasonable because Pakistan has really failed in fighting militancy in FATA. It has been unable to successfully control the tribal region for the last sixty years. It has been incapable of providing security to the population in that area and as such it is the responsibility and the duty of the international community to take the matter of fighting militants in FATA into their hands.

In conclusion, I think the overall concept of sovereignty still holds in international politics today, even though it has been diluted much by the phenomenon of globalization. Geopolitics and globalization coexist in the modern world.

Bibliography

"Foreign Policy: Think Again: Globalization." Foreign Policy - the global magazine of economics, politics, and ideas. 11 May 2009 .

"1. State Sovereignty: International Development Research Centre." INTERNATIONAL DEVELOPMENT RESEARCH CENTRE | CENTRE DE RECHERCHES POUR LE D�VELOPPEMENT INTERNATIONAL. 11 May 2009 .

Keohane, Robert & Nye, Joseph. “Complex interdependence and the Role of Force” in Power and Independence: World Politics in Transition (1977). Pp 236-250.

(This article was written by me for my Pakistan's Foreign Relations class taught by Ambassador Shaharyar Khan during my Sophomore year at LUMS.)

The Multiplicity of Legal Opinions in Islam

In the name of Allah, the Most Beneficent, the Most Merciful.

In this article, I shall discuss the implications of having multiple opinions regarding legal issues and how they have a positive impact on the Muslim ummah; their legitimacy, authority, validity and correctness; why Muslims should not abandon the four madhabs and become their own “mujtahids”; the negation of the idea that accepting multiple positions in fiqh is a form of compromise in order to maintain harmony in the ummah; and the inter-relationship between hadith, fiqh and usul al-fiqh.

Fiqh is Islamic jurisprudence. Rules of fiqh are inferred from the Quran and Sunnah (which includes ahadith) through the methodology which is called usul al-fiqh. Usul al-fiqh is the study of the origins, the sources and the practice of the fiqh. These sources include the ahadith, hence the relationship between fiqh, usul al-fiqh and hadith.

Coming straight to the point, in my opinion, plurality of legal opinion does not in any way harm the authority and legitimacy of new rules. In Ijma, there is massive plurality of opinion, yet the procedure is such that when a decision is passed in Ijma, there is no room for anyone to doubt its validity and the decision becomes binding on all Muslims to follow. If anything, Ijma, which is the product of plurality of opinions of scholars, adds to the authority of laws that are zanni or of a speculative type. In addition, all the scholars in Ijma are required to be in agreement regarding an issue otherwise Ijma is not passed. As long as there is dissent, there is the probability that one group is wrong. Unanimity removes this possibility, hence adding to the legitimacy of the legal opinion.

In ijtihad as well, no mujtahid is allowed to over-rule the verdict given by a previous mujtahid. Only the mujtahid who gave the original decision can alter it, and that too if the previous verdict was a serious miscarriage of justice or was against the law. If the mujtahid was allowed to change his decision frequently and under any circumstances, it would lead to uncertainty and hence cast doubt about the validity of ijtihad. Hence, plurality of legal opinion in matters of ijtihad too adds to the authority and legitimacy of new rulings instead of hampering it.

In the present era, where revelations from Allah and the coming of new Prophets has been terminated, it is ijtihad through which we can continue to get guidance by which to stay on the right path in the light of Quranic teachings and Sunnah in the face of changing circumstances. The rules whereby the previous ijtihad of a mujtahid can be changed are very strict. All this promotes stability and continuity of Islamic law.

The first implication of plurality of legal opinion in Islam that comes to mind is the spirit of tolerance that prevails amongst the Muslim scholars, a feature rare to find in the jurisprudence of other religions. In the case of Ijma, different scholars come up with different solutions or answers to the same problem. They then unanimously accept a particular view. In this way, Ijma can be said to promote a culture of tolerance. The plurality of legal opinions here does not in any way harm the unity of the ummah in the case of Ijma. On the contrary, it promotes unity when Muslims unanimously agree on something. We can also mention here the tolerance that Muslims of one madhab are supposed to show to followers of the other three madhabs; they are required to accept all four madhabs to be of equal validity and respect all four of them. Here again, the plurality of legal opinion does not harm unity of the ummah.

An advantage of plurality in legal opinion is that through it the very best solutions to a problem can be found out. For instance, in Ijma, all opinions of the scholars are heard and the best and most suitable one is adopted. If there was no plurality of legal opinion and only one authoritative person’s opinion was supposed to be implemented, it is possible that there might be an opinion that was better than that person’s opinion which, if implemented, could have had even better consequences.

Plurality of legal opinion, in my opinion, can also be related to the adaptive capability of Islam under changing circumstances. For example, in Ijma, the best solution proposed by all the mujtahids regarding a new problem is adopted, hence playing a role in the evolution and adaptation of Islam in the face of new situations.

Moreover, the motive behind the idea of having plurality of legal opinions is that it makes people ponder over the commandments of Allah. A mujtahid is supposed to come up with his own ijtihad in a matter. He may not imitate another mujtahid or allow a more learned mujtahid’s decision affect his own ijtihad. This way, Islam makes the mujtahid ponder over the teachings of Allah.

Yet another implication that came to my mind is that plurality of legal opinion gives people more choice as to who to follow. They can choose and follow the opinion which they like and which they find most suitable and easy to follow and which they are most comfortable with. This highlights the characteristic of Islam that Islam makes religious practices easier for people to follow.

Due to the above mentioned facts, I think plurality of legal opinion is a positive characteristic of Islamic law.

Does plurality generate negative heterogeneity? The arguments already given above in support of the idea that plurality of legal opinion promotes notions of authority, legitimacy, stability and continuity can be used to argue that plurality would not in any way generate negative heterogeneity amongst Muslims. However, in my opinion, these characteristics minimize the possibility of negative heterogeneity but do not altogether eliminate it. History tells us that in the early centuries of Islam, there were a lot of disagreements and confusions amongst the ulema regarding matters of fiqh. It was after Imam Shafi’i laid down the methodology or usul al-fiqh that these differences, though they existed later on in the four madhabs, were largely minimized. It was, in my opinion, precisely because of these differences that the four madhabs were formed, otherwise only the madhab of Imam Shafi’i would have been there and no other schools of thought would have emerged. These differences continue even today but are of a lesser intensity than before. The greatest proof that these differences have been minimized and brought under control is that all four madhabs respect each other and Muslims have not adhered to or formed any more new madhabs. Jurists have always endeavored to get their opinions coincide with the prevailing opinion of the madhab they belong to, hence minimizing heterogeneity. One might say that there should be only one madhab so that there would be no heterogeneity at all, but we must be grateful that there are not more than four madhabs, else there would have been increased chances of conflict in my opinion.

Can multiple positions in legal matters be valid and/or correct? To understand the answer, we must, logically speaking, look at how these multiple positions are arrived at. The mujtahid who is a highly qualified Islamic scholar, when performing ijtihad, uses considerations of justice and fairness and the established usul al-fiqh to perform various forms of analysis such as qiyas and istihsan which are all based on the Quran and Sunnah. In the case of Ijma, all opinions are analysed and the most suitable one is agreed upon. Obviously, it is agreed upon because it is correct. Logically too, the decision adopted is the unanimous decision of a lot of highly qualified people and is selected from a wide variety of other opinions so it must be correct. All the decisions of all the mujtahids are accepted as correct in Islam. For ordinary Muslims, accepting the validity of the Ijma is a divine command whether they like it or not. Hence, multiple positions in my opinion are valid and correct. It is not hard to realize that this acceptance of multiple positions as being correct is the very basis of tolerance between the followers of the four madhabs.

One might wonder whether accepting multiple positions is an apologetic stance aiming to gloss over irreconcilable positions. I think the greatest argument against this view is the fact that a mujtahid is not allowed to take the ruling of another mujtahid over his own ijtihad even though the other mujtahid may be more learned than him. A mujtahid is bound only by his own ijtihad. He is not even allowed to adhere to the rulings of his madhab but must derive the rulings himself. If accepting multiple positions was an apologetic stance aiming to gloss over irreconcilable legal positions, then surely the purpose of the stance would have been to bring about harmony which can only be brought about by having minimum legal positions rather than multiple ones. The real reason why Islam allows the possibility of having multiple legal positions is to make people ponder over the instructions given by Allah.

In my opinion, it would be impractical for an ordinary individual to take it upon himself to evaluate the Quranic ayats and ahadith in the light of his own knowledge or aql. First of all, we must realize that the four madhabs have not developed in one night. They have been improved, added into, and updated by highly qualified scholars for centuries. A layman cannot claim to have gained enough mastery of Islam so as to practice his own ijtihad in legal matters. Secondly, for a person striving to become competent enough, he must first master Arabic in addition to gaining all the required knowledge of the Quran and Sunnah. This is because it would be unadvisable for anyone to read translations of the Quran or the ahadith in order to become a master of fiqh as translations often are unable to convey the exact essence of the meaning of the text as mentioned in the reading “Al-Fatiha”. Arabic has a very rich and diverse vocabulary and often translations of Arabic works lack the proper words required to convey the exact meaning of the text. As mentioned in the reading “Understanding the four madhabs”, another obstacle in the path of such a person, if he is a non-Arab, can be the fact that not all Arabic works are available in other languages. For example, many authentic books of ahadith are not there in English. This would be a serious handicap in the knowledge of an amateur attempting to come up with his own decisions regarding judicial matters. Such a stance is likely to create much confusion and discord in the ranks of the Muslims and can be successfully exploited by the enemies of Islam to undermine the unity of the ummah. Furthermore, becoming a mujtahid is a time-consuming and difficult job. If all Muslims tried to become mujtahids then all the other affairs of the ummah would come to a standstill. It is for this reason that Muslims have been asked to keep in touch with scholars rather than becoming their own mujtahids. I agree with Maulana Kamaluddin Ahmed’s notion in class where he mentioned the chains representing the different madhabs linked to the Holy Prophet (Peace Be Upon Him). He said that this chain would break down if ordinary people took the matters of judicial decisions in their own hands instead of following the madhabs.

To conclude, I think that having multiple legal positions in religious and judicial matters is a blessing for Muslims and a positive feature of Islamic law. I consider these multiple positions of the mujtahidun to be perfectly valid, correct and legitimate, and I do not think that accepting their authority is by any means a form of compromise in order to maintain the sanctity of the ummah. More so, in my opinion, ordinary Muslims should not strive to come up with their own interpretations of religious matters unless they are competent enough in their knowledge of these matters.

(This article was written by me for my Islamic Studies class taught by Mufti Kamaluddin Ahmed during my Sophomore year at LUMS.)