Gavin Howe
The principle of sovereignty, i.e. that states are equal and independent and hold the highest authority within their borders, is a pivotal principle of modern international law. However, the concept of absolute, unlimited sovereignty did not last long after its adoption, and sovereignty ceased to be considered synonymous with unrestricted power. Citizens and policymakers have recognized that there can be no peace without law, and no law without some limitations on sovereignty. This has resulted in states pooling their sovereignties to maintain peace and prosperity, for example, in the North Atlantic Treaty Organization (NATO), the World Trade Organization (WTO), and the European Union (EU). While the specific ways in which international law can impede a country's sovereignty are complex and varied, this introduction should provide a general framework for further discussion.
| Characteristics | Values |
|---|---|
| The principle of sovereignty | States are equal and independent and hold the highest authority within their own borders |
| Peremptory norms | Customary international law |
| General principles of international law | Statehood, legitimacy |
| Self-determination | States, independence |
| External sovereignty | A state is independent in its external relations and is capable of freely engaging in any actions in cyberspace, also outside its own territory, subject to restrictions under international law |
| A state's capacity to enter into treaties | Includes those on cyberspace |
| The right to constitutional or organizational autonomy | Self-determination |
| The sovereignty principle does not constitute an independently binding rule of international law | The violation of which may in turn constitute an internationally wrongful act |
| The modern notion of sovereignty | The power of the sovereign and ruling classes is limited by democracy |
| The principle of sovereignty in international law | Derived from the discourse and practice of sovereignty |
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What You'll Learn
- International law and sovereignty are closely intertwined
- International law can limit a state's sovereignty without its consent
- International law can set limits over the right to self-determination
- The sovereignty principle does not constitute an independently binding rule of international law
- The principle of sovereignty is a founding principle of the international legal order
International law and sovereignty are closely intertwined
The modern notion of sovereignty started diffusing into domestic practices globally from the late 18th century and throughout the 19th century. The concept of absolute, unlimited sovereignty did not last long, however, as the growth of democracy imposed important limitations on the power of sovereigns and ruling classes. Citizens and policymakers recognised that there can be no peace without law, and no law without some limitations on sovereignty.
Consequently, states have accepted a considerable body of law that limits their sovereign right to act as they please. These restrictions on sovereignty are usually explained as deriving from consent or autolimitation. For example, states are obliged not to make their territory available for acts that would violate the rights of other states.
The principle of sovereignty also grants states the right to constitutional or organisational autonomy, which can be equated with self-determination. However, international law remains ambivalent on the right to self-determination, and it is unclear whether international law can set limits on this right.
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International law can limit a state's sovereignty without its consent
The principle of sovereignty, i.e., that states are equal and independent and hold the highest authority within their borders, is a pivotal principle of modern international law. Most, if not all, institutions and principles of international law rely, directly or indirectly, on state sovereignty.
However, the concept of absolute, unlimited sovereignty did not last long after its adoption, either domestically or internationally. The growth of democracy imposed important limitations on the power of the sovereign and the ruling classes. Citizens and policymakers recognised that there can be no peace without law, and that there can be no law without some limitations on sovereignty.
In pooling their sovereignties to maintain peace and prosperity, states have accepted a considerable body of law that limits their sovereign right to act as they please. These restrictions on sovereignty are usually explained as deriving from consent or autolimitation. However, it can be demonstrated that in some cases, states have been considered bound by certain rules of international law despite a lack of proof that these rules were expressly or implicitly accepted by them.
For example, the English author Thomas Hobbes recast the idea of sovereign authority with his Leviathan. In this version of social contract theory, the sovereign is still conceived as an absolute master, but its power is no longer original or unconditional. It results from a contract among individuals and amounts to a function or property of the State and the legal order, which can be attributed or re-attributed if necessary.
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International law can set limits over the right to self-determination
The right to self-determination was first recognised in the context of decolonisation. It outlines the duty of states to respect and promote the right of peoples to decide their own destiny, and the obligation to refrain from any forcible act that might prevent the realisation of this right. The use of force to prevent a people from exercising their right to self-determination is regarded as illegal and has been consistently condemned by the international community.
The scope and purpose of the principle of self-determination have evolved significantly over time. While the American and French revolutions, and the emergence of nationalism, set the groundwork for the norm of self-determination, it was the European revolutions of 1848, the post-World War I settlement at Versailles, and the decolonisation movement after World War II that truly shaped and established the norm in international law.
The concept of self-determination can be divided into "internal" and "external" self-determination." Internal self-determination refers to various political and social rights, while external self-determination refers to full legal independence or secession from a larger politico-legal state. The realisation of the right to self-determination can be achieved through the establishment of a sovereign and independent state, free association with another state, or integration with another state after having freely expressed the will to do so.
However, implementing the right to self-determination can be politically difficult due to multiple interpretations of what constitutes a "people" and which groups may legitimately claim this right. While there is no recognised legal definition of "peoples" in international law, reviewing various international judgements and UN resolutions, Vita Gudeleviciute of Vytautas Magnus University Law School found that in cases of non-self-governing peoples (colonised and/or indigenous) and foreign military occupation, "a people" is defined as the entire population of the occupied territorial unit.
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The sovereignty principle does not constitute an independently binding rule of international law
The sovereignty principle, which is one of the founding principles of international law, does not constitute an independently binding rule of international law. This is because sovereignty is subject to the rules and restrictions imposed by international law. For example, the internal dimension of a state's sovereignty includes the exclusive right to exercise jurisdiction within its territory and to exercise independent state powers. However, this is subject to obligations under international law.
The external dimension of sovereignty includes the right of the state to decide its foreign policy and enter into international agreements. Again, this is subject to the restrictions imposed by international law, such as the prohibition of intervention and the prohibition of the use of force.
While some countries, such as Norway and the Netherlands, view sovereignty as an international law principle from which various rules derive, others disagree. They argue that sovereignty does not constitute an independently binding rule of international law separate from the other rules derived from it. This view is supported by the case law of the International Court of Justice, which ruled in Nicaragua v. United States of America that the United States had acted in breach of its obligation under customary international law not to violate the sovereignty of another state.
The concept of absolute, unlimited sovereignty has not endured, either domestically or internationally. The growth of democracy and the increase in interdependence between states have restricted the principle that 'might is right' in international affairs. Citizens and policymakers have recognized that peace and prosperity require limitations on sovereignty and the pooling of sovereignties through organizations such as NATO, the WTO, and the EU.
In conclusion, while sovereignty is a fundamental principle of international law, it is subject to the rules and restrictions imposed by international law and, therefore, does not constitute an independently binding rule.
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The principle of sovereignty is a founding principle of the international legal order
The principle of sovereignty is a foundational concept in the international legal order. It refers to the supreme authority of a state within a defined territory, with the understanding that states are equal and independent in their external relations. This principle has had a significant impact on the development of international law and the conduct of states.
The concept of sovereignty has evolved over time, with the modern notion diffusing globally from the 18th century onwards. Initially, the idea of absolute and unlimited sovereignty prevailed, with figures like Bodin and Hobbes conceiving of sovereign authority as absolute and unconditional. However, the growth of democracy and the increasing interdependence of states led to limitations on this concept. Citizens and policymakers recognised that peace and prosperity required some constraints on sovereignty, and this principle was pooled through organisations like NATO, the WTO, and the EU.
International law plays a pivotal role in shaping and constraining sovereignty. While states have the right to constitutional and organisational autonomy, they are also bound by certain rules and norms of international law. These include peremptory norms, customary international law, and general principles of international law. The specific rules and prohibitions derived from the principle of sovereignty, such as the prohibition of the use of force and the principle of non-intervention, further shape the conduct of states.
Despite the constraints imposed by international law, the principle of sovereignty still allows states to act independently in their external relations and engage freely in cyberspace, subject to international legal restrictions. This external sovereignty includes the capacity to enter into treaties and the expectation that other states will refrain from violating their sovereignty. The balance between international law and sovereignty is delicate, with states seeking to protect their sovereignty while also recognising the need for international cooperation and peace.
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Frequently asked questions
The principle of sovereignty is that states are equal and independent and hold the highest authority within their own borders.
International law places restrictions on a country's sovereignty by limiting their right to act as they please. For example, international law includes prohibitions on the use of force and upholds the principle of non-intervention.
International law remains ambivalent on the relationship between state sovereignty and self-determination. It is unclear whether international law can set limits on the right to self-determination when it goes beyond institutional autonomy and includes the right to become a sovereign state.
States conducting activities in cyberspace must respect the sovereignty of other states, even outside the context of armed conflict. However, the manner in which sovereignty should be applied in cyberspace is still evolving and not fully established.
The modern notion of sovereignty emerged in the late 18th and 19th centuries, with the idea of absolute and unlimited sovereignty being replaced by democracy and interdependence between states. The growth of international organizations like NATO, the WTO, and the EU has also led to a pooling of sovereignties to maintain peace and prosperity.
