The Concept of Sovereignty and the Role That It Plays in International Law - Essay Example

Analyzing the Concept of Sovereignty and the Role that it plays in International Law This paper criticallyexamines sovereignty and the impact of international law on sovereignty. For a long time, there has been a feeling that international law deprives countries of the freedom to carry out their activities freely. Sovereignty is a concept that has become a significant international issue and is a major cause of disagreement in international relations theory. Instead of presuming that the notion of sovereignty has universal or timeless connotation, recent research tends to focus on altering the meaning of this notion across a diversity of political and historical contexts. Much of this argument and the resultant historical investigation have been embarked on so due to a previous linguistic reorientation within the legal and social sciences. A major consequence of the reorientation has been to assert that language, instead of being an unbiased platform of representation, has been actively concerned with the political and legal reality. Nevertheless, as opposed to initial prospects, the linguistic twist has augmented instead of diminishing the insistent power of notion of sovereignty within political and legal discourse. The moment that researchers implied that the connotation of sovereignty significantly lies with how people understand it through rhetorical practices and linguistic conventions, they did also open a new ground of inquiry so that the concept of could thrive and survive, although now as an entity of inquiry as opposed to uncontested basis.1 Afterwards, what became the theme of immense interest was why the implication of this notion keeps changing across space and time, as well as the conditions under which the variations of the changes by extension amount to institutional changes on a striking scale. Overall, the analyses a number of issues related to sovereignty and how it is influenced by international law. Table of Contents Abstract 2 Table of Contents 3 Introduction 4 The Concept of Sovereignty 6 Understanding International Law in Connection to Sovereignty 7 Main and Own Arguments 9 Discussion of Sovereignty Concept 11 Understanding the Meaning of International Law and its Influence on Sovereignty and Vice Versa 14 Relationship between Sovereignty and International Law 15 Role of International Law 16 Which is Superior between Sovereignty and International Law? 16 Conclusion 17 Bibliography 18 Introduction Sovereignty is a concept that has misused and probably misunderstood. Some schools of thought maintain that sovereignty is “a supreme authority” where a country ahs the privilege of conducting its businesses without any outside interference. Indeed, the term “sovereign” is derived from French and simply means “super above”. Therefore, sovereign is pre-eminent or supreme. The dictionary defines sovereign as a person who has ranks above others or has supremacy; a ruler, a superior, governor, lord, or master. Thus, loosely translated, sovereignty denotes recognized supreme country or people; a country that has supreme authority to undertake its activities within external interference. On a negative connotation, sovereign becomes a subject of no greater authority.2 It could also refer to constitutional independence. With the international law, the normal understanding of sovereignty is replicated so that sovereignty no longer becomes the ultimate power through which a county is governed. In this regard, it can e argued that international law interferes with the supreme powers of an independent state. Supremacy would then mean the right to demand independence and non- interference. A sovereign state should not be subjected to territorial jurisdictions to executive, governmental, judicial, or, or legislative jurisdiction of foreign law or international. Major focus is on the international or external sovereignty, the actors and the interactions that exist between sovereignty and international law. In the recent past, there have been international law bodies such as the international criminal courts that have arbitrated over cases and have helped counties settle disputes of seek justice. Other unions such as the European Union, African Union, and other bodies have also been instrumental in helping countries resolve their problems. This has not only fostered good relations, but has also helped improve economical, politick and social ties. A major issue that has cropped, though, is the extent to which the international law should have jurisdiction concerning countries maintaining their sovereignty. As such, there should be a balance between interference of international bodies in the affairs of other countries as well as fostering good relations. The Concept of Sovereignty In the contemporary society, state as an entity ought to possess a permanent population, have a defined territory, a government and the capability to get into relations with other countries. National sovereignty is based upon the concept of national borders. For instance, American citizens who are certified to live within American borders are considered as a family. Any other person is not a “neighbor”. According to this concept, governments operating on those borders have authority to impose taxes on their citizens, initiate laws that govern to oversee the conduct of the citizens and even prosecute their own citizens without interference from other organizations, people, or governments.3 For instance, when Saddam Hussein killed the Kurdish inhabitants, he did claim that the he was practicing “national sovereignty”. In this regard, therefore, national sovereignty is based upon the premise that whoever controls the government has supreme powers of the citizens who live within the country’s borders; there should be no external interference. Some schools of doubt whether sovereignty really exists. When other countries start meddling with the affairs of other countries, then they cease to be sovereign. The notion of sovereignty is one that has raised many questions than answers. For instance, considering John Birch Society analysis that was it that the United Nations evolved into real world government, personal freedom and independence of nations would end. Even the United States can barely be considered independent. Even if U.S. were to be part of a “universal government”, the implication would be end of personal freedom.4 Even when the U.S. constitution was amended, the citizens did not forfeit their freedoms. In any case, the giving up of some of state’s sovereignty to federal government provided better protection of personal freedoms than what was there before. Indeed, history has shown a number of violations to human rights and loss of personal freedoms are morally justifiable to safeguard national sovereignty. When military or reluctant subjects rule governments such as has been the case in Palestine, oftentimes personal freedoms suffer. On the other hand, when governments are formed following mutual agreements, personal freedoms are always protected. In light of the above argument, national sovereignty is a myth and far from far from reality. It is more pragmatic to view such issues concerning SUPREMACY.5 International corporations have their unique category or powers. Concisely, a country is said to enjoy its sovereignty if experiences no external interference from “external” bodies and its citizens can enjoy total freedoms. Understanding International Law in Connection to Sovereignty Although the sovereignty doctrine has had a significant impact on progression of states, its utmost impact has been on the relationships among states. These challenges can be traced to Bodin’s assertion in 1576 that a sovereign who makes laws cannot be subject to the laws he creates. This assertion has several times been interpreted to mean that a sovereign should not be responsible any institution and is not tied to nay law. Nevertheless, a scrutiny of Bodin’s job fails to support the interpretation.6 He asserted that with regards to his citizens, a sovereign is doomed to observe some major borrowed from the divine law; the law general to all nations and the law of reason. Further, there are fundamental laws of a country that dictate how sovereign such countries are, the extent of sovereignty and who succeeds in such sovereignty. Many of these rules were later embedded and became a fabric for international law. Bodin’s theories have been widely seen to justify absolutism concerning internal political order as well as anarchy in international sphere.7 Such interpretation was expanded to a logical ending by Hobbes, where sovereignty was understood in terms of might and not law. A sovereign commands law; this cannot limit their powers, therefore making sovereign power absolute. Internationally, this condition lad to continuous state of war, where countries wanted to prove their sovereignty might. Over time, this situation has changed, albeit a little, with sovereign states claiming the right to preside over their own controversies; even using war to impose their own understanding of their rights; treating their citizens in ways they deem to fit them, and regulating their economic life with total disregard for likely consequences in other countries. The Hague conferences of 1889 and 1907 set up exhaustive rules outlining the conduct of wars at sea and on land.8 The agreement of the League of Nations that preceded the United Nations controlled the right to initiate war, as well as the Kellogg-Briand Pact of 1928 denounced recourse to war as a solution for international controversies and the use of war as a platform of national policy.9 These were then followed by the Charter of the United Nations that enacted the responsibility of member states to settle whatever international disputes they had by peaceful means, in ways that international peace and security, as well as justice, would not be endangered. It also required that members refrain in international relations through avoidance of use of force or thereat.10 However, the Charter did list as a major principle of the United Nation “the code of sovereign impartiality of all Members. Today, different countries have accepted a significant organization of law restricting their sovereign liberty to act as they deem fit. Restriction on sovereignty are always explained as emanating from auto-limitation, or consent; it can conveniently be demonstrated that a number of cases states have been viewed as bound by some regulations of international law, in spite of insufficient proof that these rules are implicitly or expressly accepted by the members.11 On the other hand, novel rules cannot typically be enacted upon a state without its nod, by the resolve of other countries. This way, equilibrium is attained between the requirements of international society as well as the wish of states to safeguard their sovereignty to the possible maximum extent. Main and Own Arguments Sovereignty and international law can be examined by looking at the Monism and Dualism theories. Monists are of the opinion that reality comprises a fundamental definitive essence; they view both internal as well as international legal structures as forming a unity12. This theory maintains that national and international rules that a state accepts, for instance, through treaty establish whether these actions are legal or illegal. In fact, in most states that are inclined towards monism an elaboration between international law in form of agreements as well as international law such as customary international is made.13 As such, these states can be partially monist and partially dualist. In states that are purely monist, international law needs not be interpreted as national law.14 Rather, it is just integrated and automatically has effects in domestic or national law. International law can straightly be practiced by national judges and may directly be invoked by the people just they could with national law. Judges can announce national law invalid in the event that it goes against international laws, because in some countries international laws have precedence. In some states such as Germany, agreements have the same impact as laws, and by the code of les posterior, only act on over national law passed before their ratification. In its purest form, monism asserts that national law contradicting international law is irrelevant even where it overrides international law. This applies even when the international law is the constitution. Practically, this assertion has had considerable advantages. For instance, if a state accepts human rights treaty such as the International Covenant on civil and Political Rights, but some of the national laws restrict freedom of the press, a resident of that country being tried by his country for violating the national law can revoke the human rights treaty in a home court, and can request the judge to apply the treaty and treat the national law as invalid.15 The treaty may have been accepted only due to political reasons to satisfy donor-countries, for instance. Thus, when a person from England feels his human rights are being desecrated, they can approach an English judge and the judge on his case can apply the legislation of the Convention. They will have to apply international law even where it does not conform to the English law. Dualism theory, on the other hand, emphasizes the distinction linking national and international law, requiring the interpretation of the national law into international law. Without interpretation, international law is non-existent and cannot be considered as law.. Here, international law is just part of the British state law only after it is accepted in national law. Article VI of the United States constitution says that agreements are elements of the Supreme Law of the land. Nevertheless, the Supreme Court restated that some agreements cannot be referred to as “self-executing.16 Such agreements have to be effected by decree before their stipulation may be effected by sub-national and national courts. Conversely as dictated by customary international law, the United States the Supreme Court did state that international law is part of national law. Notwithstanding, international law could not be applied in cases of an authoritative executive, legislative or judicial operation.17 Discussion of Sovereignty Concept Whenever sovereignty does appear in international law research, international criminal law views it as an enemy. Sovereignty is thus seen as an element of realpolitik upsetting international criminal justice at every opportunity. Whereas this can sometimes be sufficient depiction of reality, the affiliation between international criminal law and sovereignty is more exaggerated and not easy to understand. In fact, people are starting to witness a more complex international criminal law research. Oftentimes, many researchers scrutinize state sovereignty. Sovereignty jurisprudence easily lends a spurious legitimacy to nationalism. Many times, people who espouse such opinions make a point that nationalism is in no way the only culpable ideology.18 Sovereignty can be utilized to invite debate about the advisability of making the law. In Rome, for instance, “this intrudes our sovereignty was frequently used as an alternative of “we hate this’ per se. as has already been seen, there is more about the connection between international law and sovereignty.19 Perhaps it would be important to consider the similarities and differences as regards the advance towards to sovereignty undertaken in the more conventional legal/doctrinal works under review. Cassese has both practical experience as well as the apprehension of the legal theory that make such views have weight. Firstly, when looking at theoretical issues, many schools of thought maintain that there are two views of sovereignty. One such theory sees sovereignty to be pre-legal where sovereignty symbolizes a monolithic unit, which is evidently of determinate context.20 This advance towards sovereignty, even though present in some discussions in Rome, for instance on the description of crimes, fails to reflect how most scholars and states view sovereignty.21 Bodin’s initial, averagely absolutist, idea of sovereignty was simply defended, so that raising such an idea of sovereignty to normal level would mean deriving a “maybe” from a “can”, or maybe more directly, from “was”. In fact, international lawyers who were accused of assuming total idea of sovereignty did rarely do such things22. The other concept was that sovereignty is more flexible; that it is constituted by an international legal order that outlines the basic duties and rights of states, a view normally associated with Kelsen Hans and is evident in cases like the Wimbledon case (Permanent Court of international Justice).23 The literature considered takes the latter perception of sovereignty as well as the international legal order. Taking the concept, that sovereignty is so much unchangeable and absolute in away, leads to a view about the projections of international criminal law. Andrew Clapham, in a brilliant chapter in Justice for Crimes against Humanity mentions that sovereignty is a notion that keeps changing and fits into the developing scenery of international law. Ultimately, the debate takes the direction of what an individual chooses to grasp by the expression sovereignty as well as who ought to be protected. The regulation stating that there ought to be no meddling in state sovereignty simply demands the question: what are the duties and rights associated connected to sovereignty? Correspondingly, Bruce agrees to one point that restrictions obligated by global community on people identified as players vary with time. Attributes that constitute sovereignty as well as functional limits by which sovereignty is subjected can occasionally appear or disappear and definitely change their prominence. Nevertheless, he is in no way sure that as Clapham that this change did occur, insisting that the “the establishment of sovereignty, at least in vicinities that are relevant to international criminal law are out of danger of being substituted or of its significance being fundamentally diminished.24 Understanding the Meaning of International Law and its Influence on Sovereignty and Vice Versa International law emerges as an effort to tackle conflicts among nations because rules present order and assist in mitigating destructive conflicts. The international law is constructed in many ways. Firstly, law oftentimes comes because of international treaties and agreements among states. Signed agreements are the most significant origin of international agreements and do serve as a source of IGOs, that in turn are significant origins of law. Secondly, customary practices that evolve with time are codified in law.25 Thirdly, broad legal doctrines that are general to a considerable number of nations constitute part of the body of the international law. Finally, international law arises from a society of international legal elites. That the international law exists does not suggest that conflicts are easier to solve. A major distinction between national and international law is that international law often lacks enforcement mechanisms. No government exists to enact the law, as is the case with domestic law. International law cannot be enforced unless powerful countries have the interest to do so. Mostly, international law is a genesis of conflicts. Most forms of international law have been contested by states that fear their sovereignty will be undermined. Worse still, cross-cultural disparities make it elucidation and implementation intricate. When they adapt international law into national laws, theoretically governments offer enforcement mechanisms. Overall, despite its noble mission of dealing with disputes and crimes, international law is often viewed by nations-especially developing nations-as infringing their sovereignty. The International Criminal Court at The Hague, has for instance, witnessed criticisms from nations that believe they can have their own tribunals. Relationship between Sovereignty and International Law Sovereignty appears to be stubbornly resilient. The “the new world order as foreseen by great leaders such as George Bush is yet to develop. Conventional forces of nationalism, culture and monoculture continue to define and shape international order in aspects that had not been foreseen ten years ago.26 Where a state accepts an agreement but fails to adapt its national law to match to the agreement or fails to form a national law overtly integrating the agreement, then it infringes international law. However, one cannot allege that the agreement is part of the national law. Citizens cannot depend on such law. Neither can judges apply such law; in essence, national laws that contravene such laws remain effective. In view of dualists, national judges cannot effect national law; they can only interpret international laws that have been interpreted into national laws. As such, international law cannot confer rights recognizable in municipal courts. As long as international law rules are incorporated in the rules of the national law, they can be accepted in civic courts create obligations and rights.27 The dominance of the international law is considered a rule in the dualist systems just as it is in monist systems. Where the international law is not openly applicable, as is always the case with monist system, then it must such a law must be interpreted into national law and the current national law that contravenes international law have to be treated as “interpreted away”. It must be customized or discarded so that it matches the international law. Again, according to human rights, where a human agreement is not is unaccepted for entirely political reasons, the nations do not purpose to completely interpret it into national law or to have a monistic view on the international law, the implementation of the agreement becomes so uncertain. In countries such as the United Kingdom, the dualist view is common.28 Role of International Law International law helps to accelerate order, generally in conjunction with Westphalian ideologies if state sovereignty. Great leaders such as George Bush have mentioned the need for human dignity, including the rule of law, limits of sovereign powers of a state, freedom to worship, freedom to speech and expression, respect to women, freedom of worship, religious tolerance, respecting private property and equal justice. Although, there have been tolerance from some quarters, the international law helps promote peace and foster healthy relationships among states.29 Concisely, international law is the body of principles of action and body of rules that bind upon civilized states in their relationships to each other. It plays a critical role in regulating disputes, global commerce, banking and compensations. Which is Superior between Sovereignty and International Law? In my view, sovereignty is superior. States need to safeguard their sovereignty and carry out their various activities with minimal interference from international bodies. While it is the role of international law to restore order and provide general guidance, powerful nations should consider the fact that developing nations may misinterpret their involvement in their domestic affairs. Additionally, states should be given a chance to sort out their domestic issues. International bodies such as the ICC and the United Nations should only meddle in the affairs of other nations when they are not able to handle their issues on their own. Overall, the international law serves to reduce conflicts, but there have been cases where it is misappropriated, cases such as economic sanctions. Sovereignty thus remains superior. Conclusion International law provides a forum for addressing conflicts that emanate from states. There have been varied views about international law and the conflicts that mostly exist between international law and sovereignty of states. Some states, especially the developing nations feel that international bodies should not interfere with their businesses and governments. International law is one that has undoubtedly faced many challenges, including being misinterpreted and misunderstood. However, from the literature reviewed, it is perhaps evident that international law has helped foster peace and ensure equality, fair and just treatment to every citizen irrespective of where they come from. This has seen improved international relations, commerce as well as civility. Bibliography Books Andrew C, Brierlys Law of Nations: An Introduction to the Role of International Law in International Relations (1st, Oxford University Press, 576Bartelson, Jens 2011). Sovereignty (London: Routledge 2012). Antony A, Imperialism Sovereignty and the Making of International Law Volume 37 of Cambridge Studies in International and Comparative Law (1st, Cambridge University Press 2007) 356. Boleslaw Adam B, International Law: A Dictionary Issue 2 of Dictionaries of international law (Oxford: Scarecrow Press) 477. Capaldo, G. Z., The Pillars of Global Law (NY: Ashgate 2008). Colin and Stephen T, Towards an international legal community?: the sovereignty of states and the sovereignty of international law (London: British Institute of International and Comparative Law 2006). Ersun N. K, State Sovereignty: Concept, Phenomenon and Ramifications (1st, Palgrave Macmillan 2005) 240. Rushdoony R. J, Sovereignty (Vallecito, CA: Chalcedon/Ross House Books 2007). Taylor E, & Rupert J, Sovereignty (Waterloo, ON: R/L Taylor.Warbrick 2011), Journals Alvarez J. E, The Internationalization of US Law (2009) 47 CJTL 537. Amstutz M., Global (Non-)Law: The Perspective of Evolutionary Jurisprudence (2008) 9 GLJ 465. Bomhoff J. and Meuwesse A, The Meta-regulation of Transnational Private Regulation (2011) 38 JLS 138. Buckel S. and Fischer-Lescano A, Gramsci Reconsidered: Hegemony in Global Law (2009) 22 LJIL 437. James C. & Martti K, Cambridge Companion to International Law (2012) CUP. Jan K, International Law (2013) CUP. Klabbers J, Constitutionalism Lite 1 International Organizations Law Review (2004). Krasner S. D, "Sovereignty". Foreign Policy (2001) (122): 20-29. Kingsbury B, The Concept of Law in Global Administrative Law (2009) 20. Kingsbury, B., Kirsch N. and Stewart R. B, The Emergence of Global Administrative Law (2004- 2005), 15 LCP 15. Le Goff P, Global Law: A Legal Phenomenon Emerging from the Process of Globalization (2007) 14 IJGLS 119. Luis E, Istanbul Vignettes: Observing the Everyday Operation of International Law (2014) 2 LRIL 23. Malcom S, International Law (7th ed) (2014) CUP 34. Scott C., Cafaggi F. and Senden L, The Conceptual and Constitutional Challenge of Transnational Private Regulation (2007) 38 JLS 1. Zumbansen P, Neither Public nor Private, National nor International: Transnational Corporate Governance from a Legal Pluralist Perspective (2011), 38 JLS 50. Read More