Sovereignty: The Battle for the Hearts and Minds of Men

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Among the sources of international law that protect the principle of internal and external sovereignty per se, one should mention general principles of law and customary international law. This has been confirmed by the ICJ in its Nicaragua Case. There are, however, no explicit guarantees of the principle of sovereignty in international conventional law itself. The question of the degree of power and amount of competence necessary for an entity to become or remain sovereign has given rise to a long controversy in the history of the concept. C Reus-Smit, ‘Human Rights and the Social Construction of Sovereignty’ (2001) 27 RevIntlStud 519–38. Interestingly, one of the main challenges to the legitimacy of international law is that it allegedly fails to respect the sovereignty of States, intruding upon domains in which they should be free to make their own decisions. Sovereign States are the primary subjects to binding international norms. State sovereignty is often understood in international law as a competence, immunity, or power, and in particular as the power to make autonomous choices (so-called sovereign autonomy). And most duties stemming from international legal norms directly constrain the action of States. The legitimate authority of international law is as a result often opposed to State sovereignty the way the legitimate authority of domestic law is opposed to individual autonomy. Where then does this indivisible sovereignty lie? Tombs rejects the notion that it belongs with the elected parliament in Westminster. He also disputes the right of the supreme court to find illegal Boris Johnson’s attempt to prorogue that parliament in 2019. So, sovereignty can lie only with the people and can be expressed only by their vote in a referendum.

Well before international sovereignty was deemed to be law-based and hence inherently limited through law, it was regarded as a source of law. The classic paradigm of sovereignty was precisely that international law could be based exclusively on sovereign States’ consent. Self-limitation was the condition for the binding nature of international law on sovereign States. Nowadays, the inherent legality of sovereignty is one of the central characteristics of modern sovereignty and especially of popular sovereignty. And this is also true of modern international sovereignty since 1945.Secondly, material and economic interdependence between States has meant increased institutional cooperation at a transnational, international, and supranational level, and the creation of corresponding IOs. The delegation of sovereign competences to IOs is compatible with the sovereignty of Member States and does not turn IOs into sovereign States (see Reparation for Injuries Suffered in the Service of the United Nations [Advisory Opinion]). In case of violation of the minimal right to have rights and of minimal sovereignty duties as a result, ordinary mechanisms of international dispute settlement can be triggered, ranging from political recommendations to full adverse judgments depending on the sources of the rights violated and the mechanisms available. Those mechanisms imply some kind of international institutional framework through which other States but mostly individuals can initiate claims against a sovereign State. Interestingly, even when the conditions for the legitimate authority of international law over sovereign States are fulfilled, there could still be some matters over which it is more important for a sovereign to be able to decide independently. This is by analogy to what applies to individuals: it is important that, in some cases at least, a person reaches and acts on her own decision, rather than take a putative authority’s directives as binding, even if doing the latter would result in decisions that, in other respects, better conform to reason. In sum, State sovereignty is not necessarily compatible with the authority of international law. It is only the case when the latter has legitimate authority, ie furthers State autonomy and the reasons that underlie State autonomy. Those can be understood by reference to the values that make a good State or more generally a good political entity such as self-determination, democracy, and human rights, but also the values that make a good international community of equal sovereign entities. Of course, this should not be taken to mean that State sovereignty is only incompatible with international law’s authority when it is illegitimate. There may be cases where autonomy requires legitimate authority, but others where self-direction is valuable despite the prima facie justification of international law’s authority. Too much international regulation would empty sovereign autonomy from its purpose.

Of course, the internationalization of modern sovereignty goes hand in hand with the democratization of international law itself. If international law is allowed to regulate internal matters, its democratic legitimacy has to be guaranteed. As this is clearly not yet the case, even in a non-statist minimal model of democracy, the legitimacy of international law is still open to debate. And so is that of its role in the limitation and constitution of domestic sovereignty. As long as those questions have not received a satisfactory answer, the resilience of the Wimbledon self-limitation approach in certain parts of international law, as exemplified in the International Court of Justice (ICJ)’s Military and Paramilitary Activities in and against Nicaragua Case (Nicaragua v United States of America) (‘ Nicaragua Case’; at para. 263) and arguably in the ICJ’s Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion) (‘ Kosovo Advisory Opinion’; at paras 56 and 123), should not come as a surprise. JL Cohen ‘Whose Sovereignty? Empire Versus International Law’ (2004) 18 (3) Ethics & International Affairs 1–24. M Cosnard ‘Sovereign Equality—“the Wimbledon Sails on”’, in M Byers and G Nolte (eds), United States Hegemony and the Foundations of International Law (CUP Cambridge 2003) 117–34. Another classical and related distinction pertains to the divisibility of sovereignty. The issue whether sovereignty can be divided is as controversial as that of whether it can be limited. In fact, both issues are very closely connected and often conflated. Older and recent literature refer to absolute sovereignty to mean unlimited sovereignty as much as undivided sovereignty. For the sake of clarity, I will refer to absolute sovereignty by contrast to limited sovereignty only, although divided sovereignty can obviously no longer be deemed absolute either. There are four main difficulties one may point at that are currently at the centre of discussion: the subjects of sovereignty; their relationship; their autonomy in relation to the legitimate authority of international law; and the legitimacy of minimal international human rights and democracy standards.JA Camilleri and J Falk The End of Sovereignty? The Politics of a Shrinking and Fragmenting World (Elgar Aldershot 1992). Stephanie Russo Carroll (Ahtna-Native Village of Kluti-Kaah, Sicilian-descent) (DrPH, MPH) is Assistant Professor of Public Health and Associate Director for the Native Nations Institute at the University of Arizona, USA. A researcher active at the nexus of Indigenous governance, the environment, community wellness and data,　Stephanie　co-founded the US　Indigenous　Data　Sovereignty　Network and is a founding member and chair of the Global Indigenous Data Alliance. From that time onwards, international law has developed to allow sovereign States to cooperate and not only to coexist. As of 1945, IOs and institutions have proliferated at a regional level and more globally to organize and enhance those forms of cooperation. The creation of the UN in 1945 is an example, but one can also mention the EU’s predecessor entities: the three European Communities created in 1951 and 1957. European integration remains a unique example of post-national integration and political autonomy beyond the State. Of course, this is not to say that State sovereignty cannot be in tension with human rights. Importantly, international sovereignty protects a collective entity of individuals—a people—and not individual human beings per se. True, their fates are connected, in the way democracy and human rights are correlated. But sovereignty, and sovereign equality in particular, protects democratic autonomy in a State’s external affairs and remains justified for this separately from international human rights and so-called humanity’s law. Thus, the tensions between international human rights and State sovereignty are reminiscent of those between popular sovereignty and human rights in the domestic context. The difference is that one of them is international while the other remains domestic. This actually explains why those tensions ought to be resolved within the domestic context where democracy and human rights are in a mutual relationship.

In the digital age, governments are increasingly dependent on data and data analytics to inform their policies and decision-making. However, Indigenous Peoples have often been the unwilling targets of policy interventions and have had little say over the collection, use and application of data about them, their lands and cultures. At the heart of Indigenous Peoples’ demands for change are the enduring aspirationsof self-determination over their institutions, resources, knowledge and information systems. The first part of the 20 th century is usually regarded as the time of conception of modern international law and of the so-called law of international cooperation ( Co-operation, International Law of). The League of Nations was created in 1919 and new fields fell into the material scope of international law. First attempts to secure the prohibition of the use of force and to consolidate duties of peaceful dispute settlement were made, albeit not always successfully. S Krasner ‘Sovereignty and its Discontents’, in BA Simmons (ed), International Law vol 2 (Sage Los Angeles 2008) 85–119. Most of the other, if not all institutions and principles of international law rely, directly or indirectly, on State sovereignty; it suffices to mention, for instance, the relationship between the conditions and attributes of statehood or the principles of territorial or personal jurisdiction, immunity, and non-intervention, on the one hand, and considerations of sovereignty, on the other. The 1945 United Nations (UN) system itself is based, albeit not directly on the principle of sovereignty itself, on a necessary corollary of that principle: the principle of sovereign equality of its Member States as guaranteed in Art. 2 (1) UN Charter ( States, Sovereign Equality). Provided States have supreme authority within their territory, the plenitude of internal jurisdiction, their immunity from other States’ own jurisdiction and their freedom from other States’ intervention on their territory ( Art. 2 (4) and (7) UN Charter), but also their equal rank to other sovereign States are consequences of their sovereignty. Foucault and Agamben on Sovereignty: Taking Life, Letting Live, or Making Survive, Carlo Salzani (Messerli Research Institute, Vienna, Austria)Another vexed issue is related to the legitimacy of international law debate. If under the modern concept of sovereignty, international law no longer binds only by self-limitation of the sovereign, but on the contrary by reference to the people whose autonomy is at stake, many doors open regarding the legitimate authority of international law for other subjects of international law, including individuals and IOs. More work is needed, however, to understand how international law may bind some subjects and not others, and, when it binds different subjects, whether it binds them differently and how their duties relate given their interconnection through sovereignty. Further exploration of the ways in which international law may be produced in a more democratic fashion, and under what mechanisms, is also called for.

The primary right of a sovereign State corresponds to the independence of that State and absence of subordination to any other State or entity (albeit not to international law). It protects the plenary jurisdiction of that sovereign State over its territory and the people on it. This is a principle of customary international law. Of course, in view of what was explained before regarding the limits to State sovereignty, jurisdiction is never absolutely plenary. In response to this difficulty, some authors have suggested the idea of limited sovereignty. The problem then is to know when sovereignty is so limited or fragmented that there can no longer be any talk of sovereignty. The concept of sovereignty implies a certain amount of intensity or of competence over a certain range of matters. As presented before, legal sovereignty is a general competence, ie a competence to determine one’s particular competence; as such, it requires a minimal level of control over those competences. In other words, is there a threshold below which sovereignty is emptied of any content and if so, where does that threshold lie? It is important to emphasize, however, that the notion of external sovereignty was not entirely absent from classical authors’ considerations. The emergence of modern sovereignty went hand in hand with claims to external independence and this concern may be retrieved, for instance, in Machiavelli, Bodin, or Hobbes’ writings. Since its origins, the content and implications of the concept of sovereignty have constantly evolved. In Richard Falk’s own terms, the history of the concept of sovereignty is one of ‘conceptual migration’ (Falk 789): different periods in history have generated different difficulties which in turn have influenced the legal answers sought to political problems and conditioned the function granted to sovereignty at any given time and space.Following the analogy between States and individuals entering private contracts discussed before, sovereign States are generally held as being able to bind themselves as free rational agents. For a long time, this was actually the only way in which the legitimate authority of international law over sovereign States could be justified. The paradox or dilemma of sovereignty implies indeed that States must be capable of binding themselves if international law is to exist, and also incapable of binding themselves through international law if they are to be absolutely independent. Among the different ways out of the paradox, self-limitation was deemed the least unobjectionable. This is explained by reference to the idea of normative immediacy, famously captured by the ICJ in the Wimbledon case (at 25), according to which those States that are immediately bound by law and vice-versa are sovereign and legal persons (see also Reparation for Injuries Suffered in the Service of the United Nations [Advisory Opinion]). M Bothe ME O’Connell and N Ronzitti (eds) Redefining Sovereignty: The Use of Force After the Cold War (Transnational Publishers Ardsley 2005). The first vexed issue is the subject of sovereignty. While classical sovereignty was State sovereignty, the subject of modern sovereignty is the people. This has turned the State into one of the vessels of sovereignty, and the most important one, but it also explains how international organizations may also have been gaining in sovereignty. This has brought its own set of new questions, particularly regarding the relationship between State sovereignty and the people and the debate around self-determination. Another difficult issue pertains to the relationship between sovereign peoples and in particular whether sovereignty rights and duties are erga omnes and how they are to be ranked and according to which criteria, when domestic sovereignty is said to be forfeited. A further source of contention lies in the mutual rights and duties of sovereignty that have to do not so much with the equal independence of States but with their interdependence and the development of an international political community. T Broude and Y Shany (eds) The Shifting Allocation of Authority in International Law: Considering Sovereignty, Supremacy and Subsidiarity (Hart Oxford 2008). Secondly, however, with respect to further international human rights, States may not commit to more than their constituency could and what that right to have rights or self-government authorizes. When the international legal norms at stake pertain to the basic rules of political legitimacy at the domestic level and to the details of human rights protection, both international sovereignty and international human rights law have met their intrinsic limitations. Deciding on what makes us members of a political community and how to protect our equal rights as such is likely to be the last issue to leave the scope of collective self-government and hence of sovereignty. Hence, for instance, the application of principles such as the State margin of appreciation or proportionality in international human rights adjudication.