Modern developments in international law have seriously weakened the notion of state sovereignty
International law is the term often used in referring to laws that govern the activities of primarily nation-states as opposed to individual citizens. 1 Here, we will look at the classical notion of state sovereignty, some of the major modern developments in International law, and how these developments have affected the notion of state sovereignty. For centuries, the general notion of state sovereignty was essentially that the state had political independence and exclusive control and jurisdiction of its territory. 2 Whatever states did within their borders was not subject to scrutiny from anyone else.
This has however changed in recent times for various reasons. There have been 2 major modern developments in International Law, namely the rise of international organisations and the evolution of human rights. 3 Looking first at the rise of international organisations, this practice was a logical step in International law. As nations developed and cross-border activities increased, bodies such as the International Telegraph Union (1864) began to emerge. 4 In modern times however, by far the most important body to be created was the United Nations.
It was created after the Second World War and sought to avoid another. Between 1945 and today, the UN has issued a great number of treaties and declarations. While these are optional to sign up to and generally lack sanctions for breaches, the fact that states have signed up to them is indicative of the desire of the state to live up to an ideal. Further, the structure of the UN is such that it contains a Security Council as an executive organ which in certain circumstances has the power to adopt resolutions which are binding upon all member states.
This is clearly a restriction upon the idea of state sovereignty. A more specific example of this would be the International Criminal Tribunal for the former Yugoslavia that they established in 1993. The Tribunal has the ability to conduct investigations in the territory of sovereign states, to issue criminal indictments against their citizens, and to extradite them for trial in the Hague. Further, by signing up to the UN states have given up their sovereign right to go to war. 5 Within the UN, there have also been many protocols on various topics.
For instance when we talk about environmental issues, the Kyoto Protocol comes to mind. As of November 2009, 187 states have signed and ratified the protocol. 6 Besides the UN, there were also many other regional organisations that developed. These arose for various reasons ranging from military security (NATO) to an expression of a specific regional identity (African Union). Many of these had provisions which were binding on member states. A more interesting regional organisation is the European Union which goes much further and has sought standardisation in both economical and political matters.
Again, all these organisations clearly erode the classical notion of state sovereignty to various degrees. So we can see how the rise of international organisations has weakened the notion of state sovereignty. The effects of course are varied and range from not much at all to states giving up ‘sovereign rights’ (e. g. the right to go to war) and to states transferring certain ‘sovereign rights’ to these bodies (e. g. members of the eurozone have given up the right to decide their interest rates) Let us now consider the evolution of human rights.
This entire concept that an individual has inalienable rights which are to be respected by the states and in some places even enforceable against states is fairly recent. Though its roots can probably be traced to well before WW2, it is primarily after this event that human rights came to the forefront of International Law. The Nuremberg war trials were the first time that people of power in states were punished for crimes against their own people. Undoubtedly a clear sign of the weakening of state sovereignty.
In 1948, the UN produced The Universal Declaration of Human Rights which lists a series of political and social rights. Though not legally binding, the mere adoption of the treaty by the General Assembly (0 states voted against it at the time it was passed) shows at least the recognition by the international community of these basic rights. In Europe, this was taken a step further. In 1950, the Council of Europe produced the European Convention on Human Rights which is binding upon its signatories.
To enforce it, they even created a court, the European Court of Justice. Here, the weakening of state sovereignty is quite major. Where states previously could do what they wanted to their citizens, now citizens (of these specific countries) besides being guaranteed freedoms by the state, actually had recourse against the state for infringement of these right. Having considered the 2 major modern developments in International Law it is fair to say that these have weakened the notion of state sovereignty. There is however more to be said on this issue.
The previous points have focused mostly on the internal aspects of state sovereignty. There is however an external aspect to it. I. E. the rights of a sovereign state in relation to other states. As Simonovic puts it, “the essence of the concept of external sovereignty is that only a sovereign state could be considered independent from other states and hence an equal member of the exclusive international club. 7 That this external sovereignty is unchanged is fundamental in states willing to actively participate within the realm of International Law.
The classical notion of state sovereignty is impractical in the modern world and it is impossible for it to be true (if it ever was). States are constantly engaging with each other and actions taken in one country often have implications in another. This applies to virtually everything from terrorism to multi-national corporations. Amidst this backdrop, new positions with regards to state sovereignty have begun to emerge. An interesting thought which has been suggested by many authors is that states are sovereign only because their citizens give them this power.
As such, in a sense state sovereignty ultimately rests with the citizens of the state. Ronald Brand takes this idea further. He suggests that since ultimately state sovereignty is due to its citizens, the role of the (sovereign) state is to provide security for these citizens. If strengthening the international rule of law achieves this purpose, even if it means delegating traditional “sovereign” powers to international bodies, then it is what has to be done9.
If we analyse the notion of state sovereignty from this ‘citizen’ approach, and accept Brands idea, we can see that this is clearly what is happening in many states. If we look at the rise of international bodies, each individual state ultimately increases its security by joining these organisations and reaching agreements together with other states. In that sense, the citizens are safer and will allow the state the same external sovereignty it previously enjoyed. We can see this as well in the field of human rights.
In the past, citizens perhaps did not contemplate the existence of such rights and as such allowed the state to have complete sovereignty despite infringements which they might have felt were unjust as long as security was ensured. Today, many citizens are very much aware and for states to retain the same external ‘sovereignty’ they previously enjoyed, they would have to ensure they respected these rights even if it came at the cost of reducing the competencies they had with regards to internal sovereignty.
In conclusion, on a purely literal interpretation of the notion of state sovereignty, modern developments in International Law have clearly seriously weakened this notion. It is worth pointing out however that states have been willing to concede their sovereignty in certain areas in part to retain the same level of state external sovereignty as previously afforded to them by their citizens. In this sense, the notion of external state sovereignty at least is barely affected.