SOVEREIGNTY AND INTERNATIONAL LAW
Introduction
The part played by international law in promoting the sovereign will of the State continues to draw mixed reactions from scholars, international actors and other stakeholders alike. The role played by international law is blurred in consideration developing scholarly works and international law jurisprudence.
The concept of sovereignty has seen a tremendous change since the advent of international law and international institutions. The historical perspective of sovereignty denoted absolute sovereignty that prevented any country from interfering with the affairs of a country occurring within its borders. In the same respect, countries were reluctant to interfere with the foreign relation policies that nations developed to relate with others.
Evolution of Sovereignty Concept
The changes that occurred in the world were mainly as a result of World Wars that rocked humanity during the early years. For instance, acts of aggression, which Hitler and Germany engaged in, did not witness much condemnation from the world community for fear that it would lead to war. As such most world leaders either did not want to engage or fear of trumping the sovereign authority of Germany to act as it deem fit, or they wanted to appease Hitler in hope that he will stop the aggression. Despite the position, the world was plunged into a war that would come to define and change the concept of sovereignty. World War II created a concern in the international community and led the world leaders to appreciate fundamental human rights as a universal concern of all humanity. International community has thus developed along the line of protecting the human race from plunging into another war as was witnessed during the early 1940s. In achieving the obligations, states came together to form an institution that can oversee the relations between states. The continuous development of international law has brought a lot of mixed reaction in relation to the position of state sovereignty.
After the World War II the nations came together to form United Nations and mandated it to maintain peace in the world. This mandate came with various legal implications especially with regard to state actions within and without its borders. The principle, that gained prominence, is state cooperation and commitment to maintaining international peace as espoused in the United Nations Charter. The effect of the two concepts pushed the nations to give up certain sovereign authority to the international institutions.
Although the sovereignty remains the driving factor under which nations relate, its definition and meaning are difficult to define in the contemporary circumstances. Even then, scholars have tried to define the term. It has been defined to denote full and unchangeable power over a piece of territory and people therein. Krasner on his part develops four ways in trying to give meaning to the term. Krasner fronts domestic sovereignty as exclusive political authority within the state that a state enjoys. Secondly, the theorist develops the concept of interdependence sovereignty which concerns that degree of control of movement that a state can exercise across its borders. The third concept is international legal sovereignty which concerns the establishment of a political entity in the international plane. International legal sovereignty denotes the concept of legal personality of states. The fourth concept is the Westphalian sovereignty which is understood as an institutional arrangement for organising political life based on territoriality and exclusion of external factors from domestic structures.
In some respect, scholars have maintained that the term is a collective umbrella that dictates rights and duties of states in accordance with international law. Consequently, the term is more dynamic and bout to change in meaning depending on the circumstances.
The purpose of this thesis is to review the extent in which sovereignty of states is reflected in international law. The thesis seeks to demonstrate the role played by international law in promoting and protecting sovereign will of states. The method applied in this respect is reviewing existing literature by international legal scholars.
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The doctrine concerns two distinctions that include external and internal sovereignty. International law has been seen as a threat to sovereignty of the internal sovereignty by many political and social actors. However, the concept of sovereignty of the nation is regarded under international law as the main driving factor of relations between states (Shaw 2010, p. 47). As such sovereignty of states is an important component in maintaining the world peace and achieving state cooperation for the greater good. The Charter of the United Nations emphasises the concept of sovereignty of nations with regard to equality of member states on the international plane (Shaw 2010, p.49). By affirming the notion of sovereignty as the driving factor of international relations between states, international law promotes the sovereign will of states.
International law approach to sovereignty is to guard against unilateral actions. As such international law emphasise the concept of equality. The concept demands that state engagement must be done in the prism of political, social and legal equality. International law has progressively changed the idea of sovereignty from the Westphalian notion to a broader meaning. According to Koskenniemi, the Westphalian sovereignty is a myth due to the increasing challenge to the state-centrism. Koskenniemi argues that the affairs of the State are defined by the ultimate members of the communities that form part of humanity. The need to protect the values of humanity goes beyond the concept of statehood and must be approached through international law (Koskenniemi 2014, p.35). Consequently, international sovereignty of States seeks to achieve to components. First it must protect the individual states interests. Secondly it must protect the interest of mankind. The balancing act between human interests and states interests by international law hampers the Westphalian concept of sovereignty.
States have often used the concept of sovereignty to demand non-intervention of other states especially in matters that they consider as exclusively falling within their mandate. However, the role, which the international institution and the development of international sovereignty through norms and values expected of the nations have made the traditional concept sovereignty more permeable (Koskenniemi 2014, p.38). International communities have in the most occasions intervened on internal matters that affect the nations. In particular, the advent of International Criminal Court has been the basis through which states have fronted exclusive sovereignty on certain matters but the Court has interfered (Kratochwil 200, p. 57). Nevertheless the concept of non-interference still form part of international relation but like sovereignty has gone tremendous change in meaning. International law adoption of “sovereign equality” is an important way of accommodating the interests of all parties concerned (Kratochwil 200, p. 57). As such, international law limits sovereign will of states as against the other states.
The advancement of international law in the area of sovereignty has become more complex with the inclusion of non-state actors within the international system. The extent and application of international law especially in regard to individual responsibility have rubbed most nations the wrong way (Scobbie 2010, p.77). The overriding nature of international law has grown to threaten the domestic norms that have for a long time held the state operation together. The Rome Statue has been developed to override most of the application of national laws in cases where an international crime, as described in it, is committed within the boundaries of the state. Despite giving the National Court first preference in such cases, high-ranking political leaders have not been given the immunity of office that is normally enjoyed under domestic law. For example, a sitting president can be charged in the International Criminal Court for crimes against humanity (Scobbie 2010, p.77). The legal clout, which states enjoyed over its citizens, has been greatly hampered. The need to protect universal values and principles has formed the basis of this change.
International organizations are created with the purpose of empowering and strengthening corporation among the world states. There is growing awareness that states sovereignty can hamper this cooperation goal (Arend 1998, p.15). The awareness especially in the areas of human rights, humanitarian and environmental law has achieved positive results. States have embraced the lead taken by the United Nations in respect of these areas. There has been a general agreement that the decision taken by the international or regional organizations will bind the state (Besson, & Tasioulas 2010, p.14). Further, there has been a campaign for the states to respect and enforce the findings and judgements of international tribunals and courts. In the field of conflict and foreign intervention, states have been consistently willing to accept infringement of their sovereign right to the protection of individuals (Koskenniemi 2011, p.72). Consequently, international cooperation has formed the forum through which matters formerly taken as indispensable are currently resolved outside the internal sovereignty of states (Besson, & Tasioulas 2010, p.14).
Despite the tremendous change in the concept of sovereignty, there have been trends in the current practices to re-establish the Westphalian sovereignty (Higgins 1994, p.23). The trend is evident in the contemporary actions of the states. For instance, there has been growing concern in the world over the aggression that Russia has adopted since the collapse of Soviet. Such authoritarian behaviours have been backed by the call for sovereignty. International law has played a role in re-establishing sovereignty of nations as a way to protect advance cooperation and peace (Neff 2014, p. 24).
Economically weak countries have relied in the concept of sovereignty to enable them negotiate trade deals and keep up with the rest of the nations. International law recognises the use of sovereignty as a factor that promotes pride of a nation (Nardin, 1983, p.89). International law has coined the idea of democracy to support the notion of state sovereignty to avoid powerful nations from taking advantage of the smaller and weak countries. Theoretical basis of the concept of democracy is the notion of sovereignty of the state (Brownlie 1981, p.55). Small states have an opportunity to engage in negotiations as equal partners with the powerful nations. Sovereignty is the operating principle to guard and shield weaker states from exploitations. In this way, international law achieves its obligation of a peaceful world (Slaughter, Tulumello & Wood 1998, p.12).
Further, the development of international law has been coined cautiously to allow states to persistently protest to the creation of customary international law that may counter its internal interest. For instance, the United Nations cannot and does not effectively prevent or prohibit the creation of nuclear weapons by nations. In bid to achieve a nuclear-free world, the United Nation relies on negations and agreement between states on the development of such weapons that threaten peace of the world.
Vienna Convention on the Law of Treaties (VCLT) has accorded the states a right to place a reservation on certain Articles of international treaties that they feel does not favour them either culturally, economically or politically. Placing reservation is one of the ways through which international laws seeks to promote free consent and sovereignty of the international law participants (Cassese 2005, p.32). However, the limiting factor of the Convention on placing reservation is another factor that controls the sovereign actions of states when deciding to be bound by a treaty. The convention prohibits reservation in cases where there is an express prohibition of reservation in the treaty. Reservation is also deemed invalid where it is inconsistent with the objective and goal of the treaty. In addition, where a treaty provides for specific areas available for reservation a party cannot proceed to place a reservation on matters that fall outside specified areas. In this way, international law controls the sovereign nature and practice of states (Cassese 2005, p.32).
The United Nations Charter still maintain the concept of territorial integrity and political independence in connection with the relations and actions between states. The two notions are related to territorial sovereignty. In affirming territorial sovereignty, international law is committed to promoting independence of states regardless of the political regime that it adopts. Montevideo Convention provides more supportive Article to the concept of state sovereignty (Watts 2005, p.11). The Convention defines the States as a sovereign entity. The practice of the international community has discouraged interference with other states’ internal affairs. Despite the doctrine of non-interference, most powerful nations have been accused of constantly interfering with the affairs of developing countries in areas of internal politics and economic development. For instance, the U.S has been several times accused of interfering in the affairs of smaller nations using political and economic threats to achieve their goals.
However, it does not follow that the States can act unilaterally and in disregard of international norms and practice even within their boundaries. International law application extends to the boundaries of the states when they are ratified thus forming part of the domestic laws. When a Treaty is ratified, obligation which the state has towards the international community becomes binding and enforceable in its Court and in international Courts and Tribunals. Further, there are principles that international law has given the status of “jus cogen” making them non-derogable in whatever circumstances that a state might be facing in the preceding circumstances. Reliance on state sovereignty does not follow that the state is exempted from the international obligation. Consequently, the notion of an absolute sovereignty cannot exist in the international setting despite most of the international instruments promote state sovereignty (Cassese 2005, p.33).
According to the Friendly Relation Declaration of 1970, sovereignty is emphasised in five different aspects. The Declaration creates a legal obligation for other states against their fellow states for purposes of peace and good neighbourliness. It affirms judicial equality of states. In this sense, Countries are required to corporate in the area of the judicial process to give up persons in their custody for trials. It also gives a mandate to the countries to have confidence in the judicial system of other nations without being unduly critical. The second affirmative is the inherent right of sovereignty (Besson, & Tasioulas 2010, p.15). This denotes that no state can act in a manner that is likely to breach a state’s inherent right. The third obligation created under the Declaration is the duty to respect the personality of member states. It holds the territory of states and their independence as inviolable. Inviolability of the territorial integrity and political independence is important is averting the recurrence of the World Wars that affect the world economy negatively. In addition to the duties of states to respect states sovereignty, the Declaration requires that each state must endeavour to comply fully and in good faith with their international obligations in view of promoting peaceful co-existence (Nardin 1983, p.91).
International law has not taken away the legislative roles of state parliament as it may seem. It is an international law requirement that parties entering into a treaty agreement must ratify them. Ratification is the process of domesticating an international law instrument or treaty for it to have a binding effect on the country. It normally takes a legislative process in most countries (Cassese 2005, p. 45). Therefore, the notion that international law overrides the domestic laws does not find much support considering that an international treaty cannot take effect unless it is properly ratified (Besson, & Tasioulas 2010, p.17). Ratification is an element that international law insists on to give the public of member states an opportunity to assess the merits and demerits of the treaties. In this sense, international law protects state sovereignty and independence. The power, to ratify international laws into domestic law, is exercised free from coercions from the international community. International law recognises failure to ratify as an intention shown by a country on its intentions not to be bound by the terms of the treaty.
Conclusion
The growing globalization is changing the concept of sovereignty of the state making it difficult to ascertain the true meaning of the concept. Despite most international instrument, insists on sovereignty of the nations in the international plane, actual practice does not promote the concept as much. International organizations have been known to interfere with the internal affairs of other nation when they deem them as contrary to international obligations, further, countries are mandated to take legal actions against other states on an internal action that they feel does not meet the obligations under international law. For instance, the WTO law allows for countries to bring claims of unfavourable trade measures before the WTO Dispute Settlement Body to have the country comply with the WTO standards. Globalization has set the world on common values and goals that states are expected to adhere to and follow. In this respect, international law has been given preference over domestic laws in case there is a conflict. Giving international law much preference defeats the purpose of territorial and political independence as espoused in the international instruments and conventions. States are required to operate within the prism of international law rather the domestic laws that are formed by duly elected legislators.
However, the law making process under international law can be said to affirm sovereign nature of states in several respects. States enter into international agreements as subjects and not objects of international law. As such they can negotiate the terms of the treaty to favour their position without any form of political pressure. For example, in the WTO multilateral agreements are considered binding when there is consensus among all parties. In the situation that one party declines to vote in favour of a resolution, it does not pass. Further, the concept of state equality before the law reaffirms international law commitment to promoting sovereign nature of states.
Despite the interplay between national and international law, the traditional meaning of state sovereignty cannot be re-established. Giving states an authority, to act unilaterally, would portend social friction between states thus making the world vulnerable to fall into another world war. There is thus a need to balance between the ideas of supremacy of the state and the obligation to protect fundamental, global and collective concern at the international plane.
In general, international law serves the same purpose a domestic or municipal law. The two levels of laws share common attributes and seek to protect common values. Both laws provide stability and predictability of the legal system and state operation. Domestic law serves to provide the foundation of order within the national jurisdiction through the concept of sovereign authority of the nation to act as it deems fit within its territory. On the other hand, international law promotes international order on the basis of state sovereignty within the international plane.
Reference List
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Watts, A 2000, ‘The Importance of International Law’ in M. Byers (ed.), The Role of Law in International Politics: Essays in International Relations and International Law Oxford: Oxford University Press.
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