Sovereignty and international Law

Dr . Bhanu Pratap , Assistant Professor , Faculty of Law , University

of Lucknow .

Keywords : Westphalian sovereignty , subsidiarity and kant .

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Sovereignty and International Law
Principle of subsidiarity : A New approach to sovereignty in International Law. The
general perception is that the concept of sovereignty as it is thought of today, particularly as to
its core of a monopoly of power for the highest authority of what evolved as the nation state
began with the 1648 treaty of Westphalia. But things are changing now. One United States
government official has succinctly defined the concept and its problems.

'Historically, sovereignty has been associated with four main characteristics : First,
a sovereign state is one that enjoys supreme political authority and monopoly over the
legitimate use of force within its territory. Second, it is capable of reg ulating movements
across its borders. Third, it can make its foreign policy choices treaty. Finally, it is recognized
by other governments as an independent entity entitled to freedom from external intervention.
These components of sovereignty were never absolute, but together they offered a predictable
foundation for world order. What is significant today is that each of these compon ents -
internal authority, border control, policy autonomy and non intervention is being challenged in
unprecedented ways." 1

Sovereignty has also been explored as a "social construct". According to this view,
"Numerous practices participate in the social construction of territorial state as sovereign,
including the stabilization of state boundaries, the recognition of territorial states as sovereign,
and the conferring of rights onto sovereign states". 2

It means that sovereignty itself has no particular characteristics, but its nature
depends very much on the customs and practices of notion st ates and international system. this
could change over time. Professor Thomas Franck, perceiving that sovereignty was devolving
to the people, asserted in his ground breaking 1992 article.

1
Richard N. Haas, Former ambassador and director of policy Planning staff, U.S. Department of state, sovereignty :
Existing Rights, Evolving Responsibilities, Remarks at the school of Foreign Service and the Montana Centre for
International studies, Georgetown University (Jan 14, 2003) Page 2, available at
http://www.georegtoun.edu/sfs/documents/harssovereignty_20030114.pdf last accessed on 19 Feb 2014 at 16:28
p.m.

2
Cynthia Weber and Thomas J. Biersteker, Reconstructing the Analysis of sovereignty: concluding Reflections and
Directions for future Research in "State sovereignty as Social Construct" (Cambridge: Cambridge University Press)
1996, Page 278.
 The entitlement to democracy in international law has gone through both a
normative and a customary evolution. It has evolved both as a system of rules and in the
practice of states and organizations. This evolution has occurred in t hree phrases. First came
the normative entitlement to self determination. Then came the normative entitlement to free
expressions as a human right. Now we see the emergence of a normative entitlement to a
participatory electoral process. 3

John. H. Jackson connects the idea of "Principle of subsidiarity with "allocation"

issues, in the modern and global context, which reference to policies that might suggest the
need for a higher or lower level allocation of power. 4 The principle of subsidiarity roughly
stands for the proposition that governmental functions should be allocated, among hierarchical
governmental institutions, to those as near as possible to the most concerned constituents,
usually downward on the hierarchical scale. It attacks the "antiquated" definition of
sovereignty which could characterized as the nation state's power to kill its citizens, torture
citizens, and engage in all sorts of arbitrariness. The march is toward the sovereignty of
people. The idea is to have government decisions made a s far down the power ladder as
possible. The idea is that a government closer to the constituents can better reflect the
subtleties, necessary complexity and detail embodied in its decisions in a way that most
benefits those constituents.

The Responsibility to Protect is closely linked to the principle of 'subsidiarity'. This

principle implies that, if the state entertaining the strongest link to a situation does not assume
its jurisdictional responsibility, it may forfeit its right to protest against oth er states
jurisdictional assertions over that situation. Sovereignty should no longer be used as a shield
to tend off unwelcome jurisdictional assertion. Sovereignty entails responsibility : the
responsibility to bring their laws on internationally harmfu l situations. In Dworkian terms it
can be said that Human Right have 'TRUMPED' the traditional notion of sovereignty.

Principle of subsidiarity : Under this principle, a state may only exercise its
jurisdiction if another state with a purportedly stronger nexus to the fails to do so in ways that
are reasonably acceptable to the would be regulating acceptable to the would be regulating

3
Thomas M. Franck "The Emerging Right to Democratic Governance," 86 American Journal of International Law
(1992) page 46, 90

4
John H. Jackson, "Sovereignty Modern : A New Approach to An outdated Concept,, 97, America Journal of
International Law (2003) Page 785
state or to the international community at large. Subsidiarity presupposes that all states have an
interest in clamping down on activities that are harmful to states, and the international
community. Its roots could be traced to Hugo Grotius in his Dejure Belli ac pacis that the
territorial state, i.e. the state with arguably the strongest nexus to a situation, is under an
obligation to prosecute offences committed within is territory and that if it fails to live up to its
obligation, other states are entitled to step on subsidiary basis, so as to protect their interest. 5

Cedric Ryngaert in his book "Jurisdiction in Internat ional Law" has used the
following passage from Grotius "Dejure b elli ac pacis" to elaborate on the doctrine.

"........ But since established governments were formed it has been a settled rule, to
leave the offences of individuals, which affect their own c ommunity, to those states
themselves, or to their rulers, to punish or pardon them at their discretion. But they have not
the same plenary authority, or discretion respecting offences, which affect society at large, and
which other independent states or their rulers have a right to punish, in the same manner, as in
every country popular actions are followed for certain misdemeanours. Much less is any state
at liberty to pass over in any of his subjects crimes affecting other independent states or
sovereigns. On which account any sovereign state or prince has a right to acquire another
power to punish any of its subjects offending in the above named respect a right essential to
the dignity and security of all governments. 6

This Gratian maxim based on the idea of natural law (being eclipsed with the advent
of positivism and Westphalian system of 1648) has been received in the form of Responsibility
to Protect and Francis Deng's Concept of "Sovereignty as Responsibility".

According to Cedric Ryngaert, states agree before hand, in a state of nature, to grant
the territorial state the primary responsibility to establish jurisdiction over activities that
potentially harm the interests of other nations and other harmed states as secondary or
subsidiarity responsibility. The Bystander States may assume this subsidiarity responsibility
also in respect of crimes which are violations of laws of nature and "jus gentium". To prove
this theory he has cited Hugo Grotius again.

5
Cedric Ryngaert, 'Jurisdiction in International Law" (Oxford: Oxford University Press) (2008) Page. 214

6
Ibid Page 215
 "It is proper also to observe that kings and those who are possessed of sovereign
power have a right to exact punishment not only for injuries affecting immediately themselves
or their own subjects, but for gross violations of the law of nature and or nations, done to other
states and subjects." 7

Under the subsdiarity principle, states with the strongest nexus to the case forfeit
their right to protest against the other states jurisdictional assertions over that case, if the
former states fail to adequately deal with it. Sovereignty becomes a relativ e notion. This also
means that state regulators and courts pass judgments to prosecute globally harmful conduct. It
responsibility to protect is to be construed strictly on financial aspect it is the most appropriate
way to enhance global welfare with Minimal Transaction Costs.

Another important aspect is the "Institutional Theory of sovereignty" propounded by

Ryan Goodman and Derek Jinks. 8 This approach is based on the constructivist idea. It says that
states are organizational entities embedded in a wid er social environment. In short, it is argued
that elemental features of states derive from worldwide models constructed and propagated
through global cultural and associational processes. These models define and legitimate
purposes of state action, and they shape the organizational structure and policy choices of
states in many of their issue areas. These approaches.

1) Define the organizational form of the modern state.

2) Delimit the legitimate purposes of the state.

3) Constitute states as the principal legitimate actors in the world policy.

The world order behaves in a certain way and has a distinct cultural process. Based
on the distinct culture it expects other states to behave in that way. It is this process that
defines "legitimate actor hood". Acc ording to the authors the explanatory power of the model
examines the institutionalization of world models of "national security". National security is
constructed through these global cultural and associational processes. 9 Once socially defined

7
Supra note 24, Pages 215-216

8
Ryan Goodman, Derek Jinks, "Toward on Institutional theory of sovereignty, (55 Stanford Law Review May 2003)
Pages 101-138

9
Ryan Goodman, Derek Jinks, "Toward on Institutional theory of sovereignty, (55 Stanford law Review May 2003)
Page 105
institutional environments are in place, changes in organizational form are driven more by
considerations of legitimacy than by concern for rational adaptation or efficiency. This causes
"isomorphism" i.e. organization become more and more like one another. 10 States are defined
by and legitimated through global cultural models. The authors refer two such processes that
are relevant.

a) First, world society systematically constructs state identity and purpose. The
contemporary nation state is the preferred form of sov ereign responsible actor. All sorts of
collectivities have learned to organize their claims around a nation state identity.

b) World cultural elements ensure the systemic maintenance of scripted models of

action identity. 11

According to the theory the substantive content of "national security" is itself

substantially shaped by global models. World polity constructs and legitimates particular
national security interests. This part is explicitly considered with humanitarian intervention.
This point discusses two points (1) expanded grounds for humanitarian intervention and (2)
conceptualization of massive human rights violations as threat to international peace and
security. It is at this point that we should bring the concept of "failed states" and issue s tates.
Rogue states violate their citizen human rights and failed states are no longer able to provide
for their population any protection. National militaries have been employed not for territorial
or strategic purposes but for humanitarian ends. Powerful states have clearly undergone a
transformation in the normative understandings about which human beings merit military
protection. States may now military intervene to rescue unfamiliar people in foreign lands,
bona fide efforts in this regards constitute a legitimate interest of state power. States have
come to conceive of gross human right violation in another country as a threat to their own
security. It is actually a sociological application of Kant's "Perpetual Peace" model which is
now being given an aggressive made through Responsibility to Protect.

10
Ibid Page 107

11
Ibid Page 108