Free «Sovereignty and International Law» Essay Sample
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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 of 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 maintain international affairs with others.
Evolution of Sovereignty Concept
The changes that occurred in the world were mainly as a result of world wars which rocked humanity during the early years of the twentieth century. 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 a war. As a result, most of the world leaders either did not want to engage or were afraid 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. The World War II created another concern in the international community and led the world leaders to appreciate fundamental human rights as a universal threat for the existence of the entire humanity. Thus, international community has 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 reactions in relation to the position of state sovereignty.
After the World War II, the nations came together to form the 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 explain in the contemporary circumstances. In any case, the term 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. Firstly, the scholar 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 notion 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.
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The purpose of this paper is to review the extent in which sovereignty of states is reflected in international law in order to demonstrate the role played by international law in promoting and protecting sovereign will of states. The method applied in this respect is reviewing contemporary academic literature.
The analyzed doctrine concerns two distinct dimensions that include external and internal sovereignty. International law is 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). Therefore, 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 emphasizes this concept with regard to equality of member states on the international plane (Shaw 2010, p. 49). By affirming the notion of sovereignty as a 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 underlines equality. This concept demands that state engagement must be done through 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 (2014), the Westphalian sovereignty is a myth due to the increasing challenge to the state-centrism. The researcher argues that the affairs of the state are defined by the ultimate members of the communities that form part of humanity (Koskenniemi 2014). 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 two components. Firstly, it must protect the individual states interests. Secondly, it must protect the interest of mankind. The balancing act between human interests and state interests by international law hampers the Westphalian concept of sovereignty.
States have often used the term 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, has 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 issues but the Court has interfered (Kratochwil 2000, p. 57). Nevertheless, the concept of non-interference still forms part of international relation, notwithstanding that 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 2000, p. 57). As such, international law limits sovereign will of states 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, has 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.
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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 has achieved positive results, especially in the areas of human rights, humanitarian and environmental law. 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 judgments 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 behaviors 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 recognizes 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 weaker 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 against 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 a 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.
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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 do not favor 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 driving force 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 expressed 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 maintains 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 state 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.
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However, it does not follow that the states can act unilaterally and disregard 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 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 emphasized in five different aspects. The Declaration creates a legal obligation for other states against their fellow states for purposes of peace and good neighborliness affirming judicial equality of states. In this sense, countries are required to cooperate in the area of the judicial process to give up persons in their custody for trials. The Declaration 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 factor 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. This point asserts the territory of states and their independence as inviolable. Inviolability of the territorial integrity and political independence is important in terms of 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 endeavor to comply fully and in good faith with their international obligations in view of promoting peaceful co-existence (Nardin 1983, p. 91).
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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 recognizes failure to ratify as an intention shown by a country on its intentions not to be bound by the terms of the treaty.
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 instruments insist on sovereignty of the nations in the international plane, actual practice does not promote the concept as such. International organizations have been known to interfere with the internal affairs of other nations 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 unfavorable 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. 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 than 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 favor 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 favor 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.