International_Law_and_Sovereignty

Essay Question 2 1. Introduction The core principle of international law is state sovereignty.[1] State sovereignty basically means that the state have absolute power in regard to matters concerning within itself. To comply with an international law, a state would have to give up or at least partially give up sovereignty to take in the law and enact the law within itself. However, the problem arise when a sovereign state refuses to comply or take part in the international law. This means some essential international laws such as enforcement of human rights, nuclear weapons, weapon restrictions during war ... etc may not be effective at all. It may end up been a piece of legislation that no one wants to take part in. One solution can be ‘suspension of sovereignty’, which is granting United Nation power to forcefully enact laws in any state which it sees as necessary. However, as the paper will show, nothing is simple or straight forward with sovereignty and international law. It is a long and winding road, which tend to loop into circles. 2.1. History of sovereignty It is important to take a look at the history of sovereignty before diving into the discussion of the concept of sovereignty. Sovereignty had various meanings throughout history. It retained a core meaning which is ‘supreme authority within a territory’.[2] In the modern time, it is more known as political authority. Two major movements in history developed sovereignty – firstly the Treaty of Westphalia 1648 and secondly the circumscription of the sovereign state which began after World War II.[3] The Treaty of Westphalia 1648 was a result of 30 years on going war. The treaty involved Holy Roman Emperor, Ferdinand III (Habsburg), the Kingdoms of Spain, France, Sweden, the Dutch Republic and their allies, the Princes of the Holy Roman Empire, and sovereigns of the Free imperial cities.[4] The treaty of Westphalia did not create a sovereign states system ex bihilo, but what it did do is allowing the components of the system which had been accumulating for centuries to finally have an effect.[5] It divided its power and authority from the Holy Roman Empire. This means states authority no longer seriously challenged by the Holy Roman Empire. The temporal powers of the Church were also curtailed to the point that they no longer challenged an state’s sovereignty.[6] The sovereign states system that affect Europe at Westphalia spread worldwide over the next three centuries. Today, norms of sovereignty are enshrined in the Charter of the United Nations, whose article 2 (4) prohibits attacks on “political independence and territorial integrity,” and Article 2 (7) sharply restricts intervention. 2.2. Concept of sovereignty The norms exist in the charter of the United Nations. We know the history and origin of sovereignty, but what is the concept of sovereignty today' What exactly is sovereignty' The paper shall attempt to answer these questions and analyse the concept of sovereignty in this section. “There exists perhaps no conception the meaning of which is more controversial than that of sovereignty. It is an indisputable fact that this conception, from the moment when it was introduced into political science until the present day, has never had a meaning which was universally agreed upon” – Lassa Oppenheim.[7] The term “sovereignty” permeates the language of law and politics. It likewise critically influences the language of practical diplomacy in international law as well as international relations. Sovereignty may mean different things to different people living in different cultures, throughout different periods historically and contemporaneously, who practice different specialised or professional competences.[8] According to Winston there are proximally 13 different overlapping meaning of the term sovereignty.[9] With the restriction of page limit for this paper we will not discuss all 13 different meaning of sovereignty, but by comparing some important concept of sovereignty the paper shall attempt to find some unified concept of sovereignty. Neil Walker defines sovereignty as a discursive claim concerning the existence and character of a supreme ordering power for a particular polity.[10] He believes that such a conception is indispensable in order to understand and justify the transition from good old Westphalia sovereignty to our present condition of late sovereignty.[11] Ilgen explored the tension between the universal acceptance of the sovereign state as the primary form of political organization and the gradual emergence of a global market economy.[12] He believe that the crucial features of state sovereignty have been weakened and changed its meaning, such as its ability to make and enforce laws, the power to define and defend territorial borders, as well as the capacity to shape the direct economic performance. So the concept of sovereignty today seems both indispensable and profoundly problematic. Beaulac says it is indispensable by virtue of being a constitutive element of the modern political order, yet whenever we try to decipher that very order by means of this concept, out attempts to gain understanding are short-circuited due to the very same circularity of language that made the linguistic constitution of that order possible in the first place. [13] In the text book, Blay, talked about the Island of Palmas case “sovereignty in the relations between states signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other state, the functions of a state … The development of international law, have established this principle of the exclusive competence of the sate in regard to its own territory in such a way as to make it the point of departure in settling most questions that concern international relations.”[14] With relation to this quote Blay says that state sovereignty was seen as the absolute ability of each state to decide for itself any matter on, or affecting, its territory. Blay went on to say how a state is structured internally or how power is distributed within a state is not usually of any relevance in international law. Hinsley summaries the classic doctrine of sovereignty developed in two distinct dimensions: the first concerned with the “internal,” the second with the “external” aspects of sovereignty.[15] The former involves the claim that a person, or political body, established as sovereign rightly exercises the “supreme command” over a particular society. Government – whether monarchical, aristocratic, or democratic – must enjoy the “final and absolute authority” within a given territory. The latter involves the assertion that there is no final and absolute authority above and beyond the sovereign state. States must be regarded as independent in all matters of internal politics and should in principle be free to determine their own fate within this framework. External sovereignty is a quality that political societies possess in relationship to one another; it is associated with the aspiration of a community to determine its own direction and politics without undue interference from other powers.[16] I understand what the paper has presented so far is how complex the concept of sovereignty is. This is because throughout the research for concept of sovereignty not one paper dares to state “this is the concept of sovereignty”. All the journal articles and academic papers avoid giving one clear identifiable concept of sovereignty. They all claim the concept of sovereignty is taking on too many forms and holds too much philosophical ideas in this fast changing modern world to be pinpointed to one single concept. According to the law dictionary the meaning of the word sovereign is “the supreme legislative powers of a state: that they are totally independent and free from any outside political control or authority over their decisions.” So for the purpose of following discussion the paper shall base the concept of sovereignty on the core definition of sovereign - the absolute ability of each state to decide for itself any matter on, or affecting, its territory.[17] 2.3. International Law Is Ineffective Due To It Is Based On Sovereignty On the international plan sovereignty cannot be absolute. The international law represents a system of obligations by means of which the states accept some restraints to their freedom of action and finally – their own political autonomy. If legal dimensions of sovereignty are relatively precise, the political aspects are less definite. Actually, the concept of sovereignty affirms a legal equality and political independence of states which remains formal and fictional as much as obeying norms of international law is voluntary and violation of this norms is rarely sanctioned. Then one needs to ask if a country take on multiple treaties and conventions which require it to create and reform its own laws in order to comply with those agreements, is it still sovereign' The paper already discussed sovereign is to do with the absolute power to decide for itself. Treaties and convention means the state has to give in to rules and laws coming from the external environment. This means it’s control and power is no longer absolute. Such friction causes problems for international law and undermines its effectiveness. Using what Robert Cryer said in his paper as a starting point - international criminal law scholars see sovereignty as the enemy.[18] It is seen as the sibling of realpolitik, thwarting international criminal justice at every turn.[19] The relationship between international criminal law and state sovereignty is complex, and perhaps often misunderstood. It must accepted that international criminal law does affect state sovereignty by prohibiting behaviour perhaps previously outside of the purview of international law.[20] However, accepting the fact that international criminal law does affect state sovereignty does not tackle the problem of state exercise their power through sovereignty and not comply with the international law. This is the fundamental problem between international law and sovereignty. The international law, normally made by multiple states, does not automatically have an effect on the states. Each state due to sovereignty has a choice whether they would subject themselves to such treaty or convention. This include the states which helped to make the law. Even if a state does decide to take part in the treaty or convention it still has a choice as to which part of the treaty or convention it will comply with. This problem applies to all international laws, not only international criminal law. Human rights, international environmental law, use of weapons during war, nuclear weapon and global pandemic ... etc. All of which faces a blockade named sovereignty. Using one of the most famous convention as an example, The Kyoto Protocol. Almost every state in the world has signed and rectified this convention those who have not yet signed and rectified the convention are in negotiations and is considering signing it in the near future with one state as an exception, the United States of America. The United States of America did sign the convention back in 1998 but George Bush pulled America out of convention in 2001.[21] The United States of America now does not show any intention to sign and rectify The Kyoto Protocol and there is nothing anyone can do about that. This is just one example of the clash between sovereignty and international law but it highlights the fundamental problem well – every international law is subject to the test of sovereignty in each and every state. 2.4. Suggestions To Make International Law A More Effective Legal System Before the discussion gets underway it is important to point out that lawyers, scholars, academic and politicians all over the world have been for centuries trying to address the problem so as to make International Law a more effective legal system. The research has made me realise how big and complex the issue is. The mere suggestion this paper is about make is merely a suggestion which would, without doubt, have a lot of problems, loopholes and mistakes. With the changes in the international community, and the states are more and more depended on each other, both formal like the European Union and informal like the environmental issues, and with contemporary globalisation, especially by intergovernmental organisations such as the world bank and by transnational corporations, this meant that absolute sovereignty is no longer practical or even legitimate.[22] I agree with this view, therefore, I suggest we address the problem with ‘Suspension of Sovereignty’. This is an interesting term and concept which came across during research for this paper. Most commonly, the concept of suspended sovereignty is associated with cases of foreign occupation.[23] This means that a state normally due to war or invasion can no longer exercise its power of authority over itself. In this situation it is understandable that sovereignty is temporally suspended. Suspension of sovereignty did happen in other ways. One notable case is Mandate and UN Trusteeship. In 1950, when the International Court of Justice responded to the request for an advisory opinion on the legal status of the territory of South Africa (Namibia), Judge MacNair stated “Sovereignty over a Mandated Territory is in abeyance; if and when the inhabitants of the Terriotry obtain recognition as an independent State ... sovereignty will revive and rest in the new State.”[24] Another case is in United Nations Security Council Resolution 1244 of 10 June 1999, while reaffirming the commitment of all UN member states to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia (FRY), envisaged the withdrawal from Kosovo of all the military and police forces of the FRY together with a synchronized deployment of an international civil and security presence under United Nations auspices, respectively the United Nations Interim Administration Mission in Kosovo.[25] A few months later, in East Timor, UN Security Council Resolution 1272 of 25 October 1999 envisaged equally far-reaching powers for the United Nations Transitional Administration in East Timor.[26] I am aware that all the examples I have given here in regard to suspended sovereignty are all somewhat “emergency” situations. But what I see is that such international transitional authority can be a solution to make international law a more effective legal system. Using Kyoto Protocol as an example again, in the hypothetical world all the states that are part of United Nations takes a vote if it is passed by majority then the particular international law which is Kyoto Protocol in the current case can be forcefully applied to every state as the UN see fits. It may seem to be a good idea from first look but there are a lot of problems with this idea. Firstly there has to be a law or convention in the UN which gives itself the power to suspend sovereignty of states. To do so requires all states to agree, that would be extremely difficult. Secondly assume the first step is achieved, when the UN is in a position forcing a convention onto a state – forcing the Kyoto Protocol onto America as an example – what if the state does not agree' What kind of sanction powers does the UN have to make sure it can enforce suspension of sovereignty' I do not have answers to these questions. It may take lawyers and academics years to figure out or it may not work at all. Nevertheless, from my point of view a step towards granting UN power of suspension of sovereignty is a good step to take. 3. Conclusion International law is based on sovereignty.[27] Sovereignty means states can refuse to comply with the international law. States get together to produce important and useful international laws, however, these International law cannot be forced onto any state at all, including those states who made the law in the first place. This is like drawing a circle except normally when you draw a circle you can keep going, but drawing the international law and sovereignty circle, you start at sovereignty and you stop at sovereignty. It is the base that international law is build on, it is also the rock that is blocking international law from entering states gates. Is suspension of sovereignty a solution to the problem' I think it is. However, it has to be finetuned and restricted in some way. Otherwise granting United Nation or anybody the power to make laws that all states have to follow, some may say, maybe it is not impossible to take over the world. ----------------------- [1] Sam Blay, Ryszard Piotrowicz and N. Martin Tsamenyi, Public International Law: An Australian Perspective, 2nd ed, 2005, 185 [2] C.E. Merriam, Jr, History of The Theory Of Sovereignty Since Rousseau, 2nd Ed, 2001, 5 [3] C.E. Merriam, Jr, History of The Theory Of Sovereignty Since Rousseau, 2nd Ed, 2001, 10 [4] Treaty of Westphalia, October 1648 [5] Treaty of Westphalia, October 1648 [6] David Maland, Europe in the Seventeenth Century, London: Macmillan, 1966, p. 16 [7] Lass Oppenheim, International Law 66, (Sir Arnold D. McNair ed., 4th ed. 1928). [8] W. Michael Reisman, Sovereignty and Human Rights in Contemporary International Law, 84 A.J.I.L. 866, 1990, 866 [9] Winston p, Nagan, FRSA and craig Hammer, The Changing Character of Sovereignty In International Law and International Relations, Unversity of Florida LEvin College of Law Publications, Florida Journal of International Law, 2008, 3 [10] Jens Bartelson, The Concept of Sovereignty Revisted, The European Journal of International Law, Oxford Journal, vol 17, 2006, 465 [11] Jens Bartelson, The Concept of Sovereignty Revisted, The European Journal of International Law, Oxford Journal, vol 17, 2006, 465 [12] Jens Bartelson, The Concept of Sovereignty Revisted, The European Journal of International Law, Oxford Journal, vol 17, 2006, 465 [13] Jens Bartelson, The Concept of Sovereignty Revisted, The European Journal of International Law, Oxford Journal, vol 17, 2006, 473 [14] Sam Blay, Ryszard Piotrowicz and N. Martin Tsamenyi, Public International Law: An Australian Perspective, 2nd ed, 2005, 185 [15] Hinsley, F. H. Sovereignty, 2nd edn. Cambridge: Cambridge University Press, 1986 [16] Hinsley, F. H. Sovereignty, 2nd edn. Cambridge: Cambridge University Press, 1986 [17] Sam Blay, Ryszard Piotrowicz and N. Martin Tsamenyi, Public International Law: An Australian Perspective, 2nd ed, 2005, 185 [18] Robert Cryer, International Criminal Law vs State Sovereignty: Another Round' The European Journal of International Law, Oxford Journal, vol 16, 2005, 980 [19] Robert Cryer, International Criminal Law vs State Sovereignty: Another Round' The European Journal of International Law, Oxford Journal, vol 16, 2005,980 [20] Robert Cryer, International Criminal Law vs State Sovereignty: Another Round' The European Journal of International Law, Oxford Journal, vol 16, 2005,980 [21] Richard Black, The Kyoto Protocol, BBC News, 2005 [22] Sam Blay, Ryszard Piotrowicz and N. Martin Tsamenyi, Public International Law: An Australian Perspective, 2nd ed, 2005, 185 [23] Alexandros Yannis, The Concept of Suspended Sovereignty in International Law and Its Implications in International Politics, The European Journal of International Law, Oxford Journal, vol 13, 2002, 1038 [24] Alexandros Yannis, The Concept of Suspended Sovereignty in International Law and Its Implications in International Politics, The European Journal of International Law, Oxford Journal, vol 13, 2002, 1039 [25] Alexandros Yannis, The Concept of Suspended Sovereignty in International Law and Its Implications in International Politics, The European Journal of International Law, Oxford Journal, vol 13, 2002, 1048 [26] Alexandros Yannis, The Concept of Suspended Sovereignty in International Law and Its Implications in International Politics, The European Journal of International Law, Oxford Journal, vol 13, 2002, 1048 [27] Sam Blay, Ryszard Piotrowicz and N. Martin Tsamenyi, Public International Law: An Australian Perspective, 2nd ed, 2005, 185