Modern Developments In International Law And The Notion Of State Sovereignty

The past decades have revolutionised the way we see the world in many aspects. That change has not gone unnoticed in international law - it has serious consequences for States. In this essay I support the statement that modern developments in international law have seriously weakened the notion of state sovereignty. In order to do that, I will firstly expose what the classic concept of state sovereignty is, and how sovereignty in international law is different to internal sovereignty. I will then briefly comment on why the concept of external sovereignty has changed after World War II. The classic notion and developments in international law will be put forward and two main developments will be considered in relation to why state sovereignty was weakened. Those are the increasing power of international institutions (including regional bodies) and the development of international human rights. The State's loss of power will be illustrate through these examples. I will conclude with considerations about the role of States in this new social and political order. The notion of sovereignty is reputed to have been developed in the early 16th century in western Europe. Thinkers such as Niccolò Machiavelli, Thomas Hobbes and Jean Bodin are considered the first to articulate the concept. The Europe they lived in was not composed of nations states, but fragmented governments. The concept of sovereignty was quite revolutionary because it involved an understanding of how states should and would work at the time of early developments of States. There are substantial differences regarding internal or external sovereignty. Internal sovereignty dealt with relation of the Sovereign and his subjects. External sovereignty dealt with the position of a State vis a vis other states. The main elements included political independence, territorial integrity and exclusive control over territory. That meant that what happened between a sovereign State and its citizens/subjects, within its territory, was not to be questioned by other states. International lawyers and scholars have come to think, however, that external sovereignty does not actually mean omnipotence or an absolute right to deal with its own citizens. Dixon states that "international lawyers in the Western world have rejected the old dogmas about sovereignty and the inherent rights of states". Sovereignty at State level means autonomy, not immunity. That means that while independence is certainly important, it does not mean a State is above the law. Before World War II the international community was more reluctant to comment and condemn actions of a State towards its own citizens. It was regarded as a private area. Nevertheless, after the tragedies of the war, it became obvious that States needed to be somehow restricted. In that realm, it is relevant to consider the development of internal human rights law and how international control became more effective after the end of the Cold War. That will be considered in due course. The classic account of international law involved States which were equally powerful. Most scholars would agree that the first international treaty was the treaty of Westphalia. It was signed on the basis of a horizontal legal structure - the parties were sovereign nation-states which had formally the same capacity. The next major international convention happened in Vienna, roughly 200 years later, at the beginning of the 19th century. It is to be noted that all of this development took place in Europe, and the rest of the world was not included. Koh suggests that at the end of the 19th century one could already identify incipient global humanitarian norms. It was the era of empires, when sovereign (mostly European) States controlled vast areas abroad. Some kind of international humanitarian regulation was present in this setting, although there was a reduced number of sovereign States which decided most of the regulation, and many subjected territories. It is, however, at the end of World War II, more precisely at 1945 that the greatest change occurred. In attempts to prevent the tragedies that happened during the war, international entities, most famously the United Nations, were founded to secure peace, and regulatory bodies were established to guarantee stability. Suddenly it became acceptable to condemn, through different means, actions of States against their own citizens, and international organizations were even established for that purpose. While these international bodies did not usually have any legislative power or any mechanism of legally enforcing their decisions, the verdicts they reached were usually significant and had an impact at a national level. In some cases, if the parties expressly agreed, it was even possible to directly enforce the result, as is the case of the International Court of Justice judgments. That implies a loosening of the meaning of state sovereignty, as it meant it was no longer acceptable to have complete control over one's country under a label of sovereignty. It is therefore a fact that formally States had to forego some of their prerogatives. However, in practical terms, because of the East/West divide, much of what happened in the years after the war went un-remedied, as solutions could not be agreed upon. The Security Council, with its veto powers, could not agree on interventions. Furthermore, the USSR and the USA guaranteed that its "protectorates" were left largely untouched. Nonetheless, as the time progressed it became obvious that the world was increasingly more interconnected. The oil crisis of the 1970s was an example of how certain compromised had to be made, as every country depended on each other. Compromising also meant sovereign powers had to be abandoned in favours of harmonization of different interests. Furthermore, around that period one also noticed the inclusion of non state agents as subjects of international law . That included not only international organizations, as previously mentioned, but also corporations and economic entities. An international interdependent market was formed, and in order for it to function smoothly, corporation also had to abide to certain international standards and regulations. The growing powers of corporations and other transnational bodies in controlling international financial activity and the mounting impact that they had in lives of individuals meant that in economic purposes, the notion of State sovereignty was eroded. The picture of all powerful States responsible for all kinds of regulation no longer corresponded to reality, and the decreasing State grasp on many different area (such as economy) was not unnoticed. At sub-global level, regional bodies or institutions were created in most continents. The robustness and power varied according to regions. In Europe, a very strong institution, the European Union, developed from what initially was to be an agreement for economic purposes. In this case it is undeniable that sovereignty (including the power to enact direct legislation) is handed over. There are, however, less extreme examples, such as NAFTA, the African Union or Mercosul, when the regional bodies are not as strong but still hold significant power and limit States' freedom. Another very important reason for limitation of national sovereignty is the development of the notion of international human rights. That, once more, is linked to the atrocities that happened during WWII, but the development and implementation of human rights as checks on national governments was gradual, not abruptly at 1945. That means States now cannot do whatever they want to citizens, as there are certain basic human rights which should be observed by all countries. Examples are the right to life and the right of physical integrity of the person. In some extreme cases, disrespect for these rights justify international intervention. The growing importance and recognition given to human rights means that not only organizations, but also individuals have a place at the new international legal order. In some instances, individuals are even given the right to petition against their own countries in supranational courts. The idea that an individual belongs to a State which is the sole responsible for the actions of its citizens is broken. Therefore, once again the myth of State omnipotence is erased. In conclusion, these considerations might lead to a radical assumption that there is no space for States in modern times. Some affirm that States are dead and the concept is no longer applicable, as what now mostly regulates people's lives is a sort of transnational legal order, involving supranational organizations, corporations, and certain generally accepted principles of human rights. I would affirm that this is a gross exaggeration. Despite limitations of their sovereignty, States still play a great role, and are in fact essential in regulating citizens' lives. There needs to be some regulation at local level, which States provide. We move toward a limited concept of sovereignty. This limitation is positive as it involves consideration of matters which affect individuals regardless of countries. By no mean is this limitation, however, enough to say States are no longer relevant.