Sovereignty and statehood I 2013

1. Sovereignty and statehood I 2013 Leila Brännström

2. UN Charter Article 2 The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles: • The Organization is based on the principle of the sovereign equality of all its Members 4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations 7. Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter Vll.

3. UN Charter article 51 Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations…

4. Co-existing understandings of state sovereignty in IL discourse • State sovereignty is defined, regulated and limited by international law • Sovereignty is an innate quality of states, presupposed by, and generative, of international law • Arguments relying on the later notion of sovereignty are typically used to delimit the reach of IL

5. The emergence of states as permanently existing entities in their own right • Medieval times: the principality is the property of the prince who stands in a ”relation of externality” to it (cf. Niccolo Machiavelli's ”The Prince”) • New traditions of thought personified the state and separated it from its ruler. They also ”internalized” the relation of the government to the state. The government should rule for the benefit of the state, not for its own benefit., These traditions also perceived of the state as having an “immanent end” such as prosperity, security, order and peace.

6. The personification of the state • enabled a separation between the ruler (or the group of people governing a state) and the state as such • enabled a separation between the location of sovereignty and the incidental exercise of sovereign powers (state v. government) - enabled jurists to see states as homogenous subjects of the law of nations irrespective of internal order

7. The emergence of state sovereignty • originallysovereigntywas a theologicalnotion - at the dawnof the modern era the notionwassecularized and projected on absolute rulers - later projected on the state as such • later alsoprojected on the people/nation • however, for the purposes of IL, sovereigntyremained with the state as suchwellinto the 20th century

8. The emergence in Europe of a legal order based on sovereign statehood • The peace of Westphalia in 1648 consolidated the idea of the sovereign equality of all states entailing • the duty to recognize the sovereign statehood of others • the prohibition to intervene in the domestic affairs of other states • the right to self-determination • The ensuing legal order was non-hierarchical, decentered and pluralistic.

9. Crucial elements for the emergence of a European international order based on territorially delimited sovereign states • the escape from the imperial pretensions of the Holy Roman Empire • and from the authority of the catholic church - the personification of the state • the development of centralized authority • the acceptance of the plurality of sovereign states

10. The equal sovereignty of states for Vattel • “A dwarf is as much a man as a giant; a small republic is no less a sovereign state than the most powerful kingdom. By a necessary consequence of that equality, whatever is lawful for one nation, is equally lawful for any other; and whatever is unjustifiable in the one, is equally so in the other” (Vattel).

11. The conception of state sovereignty in the IL discourse of the 18th and 19th centuries - States enjoy natural rights and liberties. Sovereignty is the natural prerogative of states. - State sovereignty implies that the law of nations governs only the relation between states. Rulers are at liberty to govern as they please within their respective domains. No state has the right to interfere with the internal affairs of another state. - The law of nations is shaped by the free will of states and states are only bound by the legal obligations that they have agreed to.

12. A world consisting of sovereign states? - Public International Law or the Public Law of Europe? - Non-European societies that were not European in origin were simultanesouly included and excluded from the international community of states - The universalization of the state system began in the 19th century but took off with the process of decolonization

13. The traces of the division between civilized/uncivilized nations in the LON - Article 38(1)(c) of the statute of the Permanent Court of International Justice referred to ”the general principles of law recognized by civilized nations” - The mandate system designed to to deal with the situation of the colonies and territories extracted from Germany and the Ottoman Empire: Under article 22 of the Covenant of the League, ”advanced nations” (viz Britain, France, Belgium, Australia, New Zealand, South Africa, and Japan) were given the task of exercising ”tutelage” on behalf of the league over those colonies and territories which were ”inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world”.

14. Challanges to the position of state sovereignty in IL - Who had rights of sovereignty in relation to the mandates? - How could powers be ascribed to the LON in a world of sovereign states?

15. The reconceptualization of sovereign statehood in IL • Sovereign statehood was no longer described as the natural prerogative of states to decide their own destiny in a non-hierarchical world without central authority, but instead as the freedoms and rights left to states by the international law of a world community • It was now emphasized that sovereignty is absolutely compatible with restrictions on sovereignty

16. “A state… is sovereign for the purpose of accepting a limitation on its sovereignty” (Case Concerning Military and Paramilitary Activities in and against Nicaragua, I.C.J Reports 1986, p. 14, p. 259).

17. The Wimbledon Case (1923) • Germany: allowing the transit of armaments through the Kiel canal would “imply the abandonment by Germany of a personal and imprescriptible right, which forms an essential part of her sovereignty”. The PCJ: declines to see in the conclusion of any Treaty by which a State undertakes to perform or refrain from performing a particular act an abandonment of its sovereignty. No doubt any convention creating an obligation of this kind places a restriction on the exercise of sovereignty rights of the State, in the sense that it requires them to be exercised in a certain way. But the right of entering into international agreements is an attribute of State sovereignty.

18. The Wimbledon Case (1923) • The PCJ: the fact remains that Germany has to submit to an important limitation of the exercise of the sovereign rights which no one disputes that she possesses over the Kiel Canal. This fact constitutes a sufficient reason for the restrictive interpretation, in case of doubt, of the clause which produces such a limitation. But the Court feels obliged to stop at the point where the so-called restrictive interpretation would be contrary to the plain terms of the article and would destroy what has been clearly granted.

19. Case Concerning the Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua) (2009) • ICJ: ‘where the parties have used generic terms in a treaty, the parties necessarily having been aware that the meaning of the terms was likely to evolve over time, and where the treaty has been entered into for a very long period or is “of continuing duration”, the parties must be presumed, as a general rule, to have intended those terms to have an evolving meaning’

20. S.S. Lotus (1927) • PCJ: “International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims. Restrictions upon the independence of States cannot therefore be presumed”

21. Today restrictions on state sovereignty “pertain to the normal picture of international relations and cannot be termed an unusual exception” (Tomuschat 171).

22. Rights arising from sovereign statehood • Continued existence • Self-determination • Acceptance as the basis for legal obligation • State immunity

23. Military and Paramilitary Activities in and against Nicaragua (1986) • US: Nicaragua has taken 'significant steps towards establishing a totalitarian Communist dictatorship‘ • ICJ:’adherence by a State to any particular doctrine does not constitute a violation of customary international law; to hold otherwise would make nonsense of the fundamental principle of State sovereignty, on which the whole of international law rests, and the freedom of choice of the political, social, economic and cultural system of a State. [...] The Court cannot contemplate the creation of a new rule opening up a right of intervention by one State against another on the ground that the latter has opted for some particular ideology or political system’

24. Military and Paramilitary Activities in and against Nicaragua (1986) • ICJ: Whatever the impact of individual alliances on regional or international political-military balances, the Court is only competent to consider such questions from the standpoint of international law. From that aspect, it is sufficient to say that State sovereignty evidently extends to the area of its foreign policy, and that there is no rule of customary international law to prevent a State from choosing and conducting a foreign policy in co-ordination with that of another State.

25. Military and Paramilitary Activities in and against Nicaragua (1986) • US: the militarization of Nicaragua is excessive and as such proves its aggressive intent • ICJ:it is “irrelevant and inappropriate … to pass upon this allegation … since in international law there are no rules other than such rules as may be accepted by the state concerned, by treaty or otherwise whereby the level of armaments of a sovereign state can be limited, and this principle is valid for all States without exception”

26. The right to national self-determination • The principle of national self-determination implies an innate understanding of state sovereignty • The tension between two ideas of sovereignty (one innate, the other attributed or delegated) cut through international legal discourse