The Changing Notions of Sovereignty under International Law

The Author, Riya Rathore, is working as an Editor with LatestLaws.com. 

Introduction:

Sovereignty, a foundational concept in international law, has undergone a significant transformation over the years. Historically, it implied a state's supreme authority within its territory and non-interference by external actors. However, contemporary international relations have blurred the lines of traditional sovereignty, and this evolution is reshaping the way nations interact on the global stage.

Traditional sovereignty, as established in the Peace of Westphalia in 1648^[1], emphasized the principle of non-interference. States were recognized as autonomous entities with exclusive jurisdiction within their borders. This understanding of sovereignty persisted for centuries and was considered sacrosanct.

Monist and Dualist View of Sovereignty:

The traditional purpose of existing international laws is to regulate interstate activities instead of intrastate^[2]. The prevailing framework of international law distinguishes itself from the domestic legal systems of sovereign states. However, the foundation of legal systems worldwide is deeply rooted in the concept of sovereignty as enshrined in the international legal order. This perspective on international law can be traced back to the European notions of sovereignty developed during the 16th and 17th centuries, and it has remained remarkably consistent over time. In the contemporary context, we observe a discernible power hierarchy, with sovereignty, often synonymous with authority and exemplified by entities like the United Nations, occupying the highest echelon of this hierarchy.

Under the monist view of sovereignty, the framework of state has supremacy over other institutions and organisations^[3]. The Pluralist perspective arose as a counterpoint to the prevailing unidirectional and conventional monist viewpoint. In response to evolving circumstances and the growing significance of social groups and institutions within states and nations, a reassessment of the monist concept of sovereignty became imperative in this evolving global landscape. As per the Pluralist view, there is no single source of authority and the state alone does not possess supremacy over other institutions or organisations and that a state is not the only source of legislation or law^[4].

Eurocentric Model of International Law:

As espoused under the monist view of International law, it governs relationships among states. If an individual wanted to approach justice within this system, their grievance would reach the international plane only if a state exercised its domestic protectionUnder the traditional rules of international law, the claims of individuals could reach the international forum only when a state exercised its diplomatic protection and appropriate their claims in international forums.

This foundation of international law reflects the principles of Westphalian sovereignty, often seemingly made up of equal parts myth and rhetoric. In this conception, the state is a defined physical territory “within which domestic political authorities are the sole arbiters of legitimate behaviour.^[5]” States can be part of the international legal system to the degree they choose by consenting to particular rules. Likewise, they can choose to remain apart, asserting their own sovereignty and eschewing international involvement^[6]. Westphalian sovereignty, as conventionally understood, conveys that a state possesses the authority to exercise autonomy over its internal affairs, free from external interference. Concurrently, Westphalian sovereignty necessitates that a state engage in diplomatic relations, often for purposes such as trade and commerce, with other states within the framework of the international system. Moreover, it compels a state to participate in bilateral or multilateral treaties and agreements with fellow states. With these background understandings of sovereignty, an international legal system, consisting of states and limited by the principle of state consent, emerged^[7].

Presently, the exigencies confronting both nation-states and the global community necessitate distinctive reactions, thereby delineating novel functions for the international legal framework. The phenomena of globalization and the rise of fresh transnational perils have profoundly altered the landscape of governance and the essential objectives of international law in recent years. In order to furnish an efficacious retort to these contemporary challenges, the international legal system must possess the capacity to shape the internal policies of states and mobilize national institutions in the pursuit of worldwide aims.

In as much as the paradigm we delineate as the "European approach to law" is presently discernible not only within the EU but also within an expanding array of other scenarios, this article expounds upon a significant restructuring of the modalities and instruments through which international law functions. Our contention extends beyond mere exposition and prognostication, as we advocate for a transformation that these novel mechanisms of international law hold the potential to considerably enhance the overall efficacy of the system. Consequently, we advance beyond description and foresight to recommendation, proposing that the European approach to law should evolve into the prospective framework of international law on a grand scale.

Shifting from International Law to Domestic Legal Frameworks: Accommodating State Interests:

Although it is quite possible, indeed likely, that international law is expanding to include all sorts of rules and institutions that have a hybrid domestic international character, as well as domestic rules reaching beyond borders, we suggest that traditional public international law, meaning treaties and custom operating among nations in their mutual relations, has a distinct identity and a distinct set of functions. It can be argued that those functions are changing fast. The claim “that the future of international law is domestic” refers not simply to domestic law but to domestic politics. More precisely, the future of international law lies in its ability to affect, influence, bolster, backstop, and even mandate specific actors in domestic politics. International rules and institutions are meant to encourage and monitor domestic political actors, ensuring they adhere to their established commitments in their own constitutions and laws.

Eric Posner in this book ‘Perils of global Legalism^[8]’ focuses on the thinking of American and European legal intellectuals who see international law as normatively good for the world regardless of whether it serves specific state interests. Posner sees global legalism as Utopian built on unsustainable premises about human nature and the practicality of transferring domestic legal traditions to the international level^[9]. Several chapters take an interesting look at the proliferation of international courts and tribunals, arguing that these legal venues have performed better than other international bodies partly because they have limited jurisdictions that can be controlled by states.

Posner explains that nation states are ready to dispense with their international obligations or agreements to pursue their selfish interest. The book also criticises how several imminent authors promote "excessive faith in the efficacy of international law^[10]." The author asserts that maintaining the belief in the operability of a legal system in the absence of a legitimate governing institution represents a somewhat simplistic viewpoint. The author proceeds to offer a critical analysis of the monist conception of sovereignty, emphasizing its limitations. Furthermore, he posits that legalism can no longer be perceived as a universal panacea for resolving international relations.

Problem with the Classic Notions of Sovereignty:

The classic core concept of sovereignty, as explained by John Jackson in his article on Sovereignty- Modern^[11], is the monopoly of the power of state over its citizens. The classic ‘other’ dimensions of sovereignty dealt with concepts like state consent, sovereign immunity, territory of the state, sovereign equality, to name a few. The modern dimension of sovereignty as per Jackson should allows for horizontal allocation of power which he calls as ‘subsidiary approach to sovereignty^[12]’ in his article. He explains that the scope of state sovereignty extends from protection from external intervention (giving it state legitimacy) to giving a state power to make treaties. However, the classic notion os sovereignty is under threat due to organisations like WTO and GATT. Secondly, he points out problem with the classic notion of sovereignty which are the following:

• Loss of inclusivity in decision making by domestic decision making bodies
• The matters which were earlier decided or controlled by the state are now decided by the international bodies which pay very little or no heed to the domestic laws of a state.
• The concept of International standardisation of law or equating Eurocentric standards with domestic standards of law comes into play
• Accountability of states is not democratic procedure anymore
• There is ‘breach of sovereignty’ of a state since states do not power on its domestic law making power because of international pressure.
• States are unable to pursuit their self interest which is the pursuit of preference in self interest of its citizens.

Finally, Jackson states that vertical allocation of power which will put international law, national law and local law at the same pedestal of importance. The problem with this model is that the states will be happier with horizontal allocation of power instead vertical. Different states have different socio economic backgrounds. For example US being a more powerful state will have a larger bargaining power when compared with to smaller state like Nepal. It is because of this reason that the concept of sovereign equality is inherently problematic.

Conclusion:

In summary, sovereignty in international law is evolving. Traditional notions are giving way to a more pluralistic approach that recognizes the role of institutions beyond the state. The integration of international and domestic legal systems is growing, emphasizing the need for international law to influence and monitor domestic political actors. This shift challenges the classic idea of sovereignty, as global standards and organizations play a more prominent role. Sovereign equality among states becomes complex in this changing landscape. It's essential for international law to adapt to this evolving global governance while upholding core principles of justice and cooperation among nations.

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