THE PRINCIPLE OF SOVEREIGNTY IN INTERNATIONAL LAW

Abstract

There have been significant changes in international law and sovereignty is a very
controversial issue in modern times. The researchers are very interested in this subject, because
of its dominance in law and policy. Even though the concept of sovereignty has mainly, a
national context, it is heavily researched, debated and argued in international relations that it is
more than a national issue and has a severe influence in geo-politics. In this paper there has
been a critical analysis of its terminology, emergence, and its influence in shaping the internal
laws of the country, as well the external relations between different nations. There has been an in
depth scrutiny as to how national sovereignty, is making the international organizations question
their credibility. Here, various authors, researchers and scholars have shaped their view, and
the main aim is to simplify the complexities surrounding this political jargon.

Keywords: sovereignty, independence, international relations, international law, globalization.

Introduction

Hugo Grotius said that sovereignty is the supreme authority that lies with a nation which is not
depended on the discretion of another party and is impossible to supersede. In layman’s terms,
sovereignty is the freedom from external control and the freedom to formulate one’s own foreign
policy. This definition which is perpetuated by Hugo Grotius, who is considered to be the Father
of International Law, provides the most plausible understanding of a very polarized issue in the
modern world. A nation is considered to be sovereign when it has the liberty to regulate its own
internal affairs. In other words the contemporary assertion of sovereignty would be a policy of
non-interference in the internal issues of a country. However time and again global observers
have witnessed the misuse of such a vast concept and how developed global superpowers exploit
the vulnerabilities of weaker, underdeveloped nations for their own national interests.

Anghel I.M. a renowned political scientist said that sovereignty is one of the multifaceted aspects
of a state; the term is used to explicitly define absolute independence, supremacy, which is used
to determine a system which is run on the free consent of its citizens. 1 The globally recognized
author exemplified that sovereignty is the core essence of a state and empowers well-defined
territory with a legitimate government to establish its supremacy and independence which is only
governed through the consent and will of the people. India is a proper example of a sovereign
state. Since it has been mentioned in the Preamble, which is an introduction to the Indian
Constitution, that India is a democratic republic, setting a modern example of freedom from
external control, religious tolerance and a nation-state that represents the ideology of its people?

1
ANGHEL I.M, THE SUBJECTS OF INTERNATIONAL LAW, 107 (LUMINA LEX BUCHAREST 2002)
The word sovereign is incredibly important, because it truly establishes India’s independence
from its colonial and imperial legacy.

Max Huber, an arbitrator, in 1928, revealed in the international dispute surrounding Palmas
Island Deal, popularly known as United States v. The Netherlands 2 , said that sovereignty is a
cohesive and coherent structure within the sphere of international law. It regulates the extreme
power of a nation that cannot be snatched from it, in the realm of modern governance. It is used
to emphasize absolute proficiency of a nation, which can very well demarcate its territory in
order to safeguard its own national policies, and protect it from arbitrary and unlawful
interference from other corresponding developed countries. A primary example of this ideology
could be the when United States was exercising its political hegemony by invading Iraq. The
State accused Iraq of possessing chemical and biological weapons, and assassinating the then
fascist leader Saddam Hussein. However after inquiry and investigation, there was no evidence
of nuclear weapon possession by the Republic, which led to suspension of logic that is needed
for external aggression and UN Secretary General Kofi Annan called the invasion as a violation
of international treaties and UN Convention.

Hauriou, A. and Gicquel, J, said that there can be a holistic approach to sovereignty, where it
may contain global, national terminologies associated with it, under a backdrop of politics and
social establishments.3 Pusca focused on how supranational entities want to use sovereignty to
their own advantage and not allow developing and underdeveloped states from exercising their
inherent rights pertaining to that concept .4 The views that have been stated above by the authors
are contrary to each other. While the first meaning explains that sovereignty is an inclusive term,
which has a national and global significance and has a contextual reference in politics and law.
And the second idea refers to the necessity of restraining the sovereign power of a state, in order
to appease international agencies and supranational organizations. Since sovereignty is a globally
contested issue, and there are literally states those these deep states, the second contention raised
by Pusca undermines the plight of these helpless nations. For instance the US has created a
disaster in Afghanistan, by promising to rebuild the nation, starting a twenty year war in
Afghanistan, spending billions of dollars in economic restructuring, only to renege its promise,
by withdrawing its troops that led to the Taliban takeover of the country and Afghanistan facing
its worst humanitarian crisis ever. In the end an international superpower, spend billions of
dollars, thousands of manpower only to replace the Taliban with the Taliban.

2
United States v The Neatherlands, RIAA 829, ICGJ 392 (PCA 1928)
3
HAURIOU A & GICQUEL J, CONSTITUTIONAL LAW AND POLITICAL INSTITUTIONS, 132 (7 ed.
1980)
4
PUSCA. B, CONSTITUTIONAL LAW AND POLITICAL INSTITUTIONS, 161 (1999)
 Newton, K., & van Deth, J. W said that often states claim their exclusive competence over
sovereignty and abuse the liberties associated with the doctrine. 5 According to the prerogative
established by the stated authors, sovereignty may provide unrestrained power to a state who can
exercise it arbitrarily. Then it will not be a sovereign democracy that is formulated on the ideals
of Abraham Lincoln who advocated that a representative government should be ruled according
to the discretion of its people. This view propounds that sovereignty can be abused by various
states, that may lead a liberal democracy to become autocratic and tyrannical. This proposition
elaborated by the stated authors, would imply absolute freedom from international organs such as
the United Nations, to exercise any amount of discretion by a state on its citizens, whether it is
violation of human rights, or corruption. This is the reason why a state cannot exercise its
supremacy and the will to inflict any form of violence amongst its people. International
intuitions’ such as United Nations Human Rights Council, review the state of affairs in countries
where there is economic crisis, human rights abuses, violence against women, natural disasters
and offer them all sorts of aid, restrain their power and prevent them from misusing it. There is
evidentiary value in historical examples where no external supervision from international
organizations led to a nation’s absolute control, which in turn created corruption and chaos.

To summarize the stated view above, Carl Schmitt elaborates, that even if the nation has
exclusive competence to adjudicate over its own internal affairs, with no foreign interference, it
should not restrict the freedoms of its citizens, by being dogmatic and despotic. 6 Thus Carl
Schmitt explains that even if sovereignty becomes a monopoly for the state with no international
intervention, there should not be an unfettered exercise of that globally recognized power, but
there must be a system of checks and balances. The principle of separation of powers plays a
very crucial role. If the executive is abusing its authority to arbitrarily govern its citizens then the
judiciary can intervene in its corrupt practices.

Sovereignty is a concept that has its roots in the study of law and principles of equity. Jean-Paul
Sartre said that a particular country may exercise this discretion to such an extent, that it violates
the independence of another state.7 This statement means that when all nations start truly
exercising their sovereign immunity, and govern their nations according to the will of the people,
no particular country can exercise its hegemonic influence on the weaker nations to exploit its
national resources. For instance the Russian invasion of Ukraine, violated international peace
accord with the nation where earlier Russia was only able to annex Crimea, and it was further
established that Russia would not violate international law by invading Ukraine. However since
Russia retracted its promise by invading Ukraine, the world must stand in solidarity with the
war-inflicted territory and the UN must invoke sanctions on the aggressor.

5
NEWTON K & VAN DETH J.W, FOUNDATIONS OF COMPARITIVE POLITICS: DEMOCRACIES OF
THE MODERN WORLD, 22 (CAMBRIDGE UNIVERSITY PRESS, 2010)
6
SCHMITT C, POLITICAL THEOLOGY FOR THE CONCEPT OF SOVEREIGNTY, TRANSLATION BY
GEORGE SHCWAB, 5 (MIT PRESS CAMBRIDGE, 1985)
7
CHILEA D, PUBLIC INTERNATIONAL LAW, 79 (2007)
The Development of Sovereignty
According to a theory propounded by Romanian literature, as soon as the states came into
existence, their sovereignty emerged as a coexisting right. Grigore Geamănu stated that as soon
as the states evolve, supreme independence comes into picture. 8 Moca refers to the social
contract theory, and believes that sovereignty rests with the state and can be applied for the
restructuring of society.9 Korowicz said that when there are two corresponding nations, the way
they independently structure their state of affairs would be termed as the modern conception of
sovereignty.10 The stated explanations imply that sovereignty cannot be separated from a state.
The two terms are relevant to each other and are interdependent. They cannot be independent o
one another the moment the state loses its sovereignty, it no longer remains a state. For example
the Taliban takeover of Afghanistan, after USA withdrew its troops after signing the Doha
Agreement with the terrorist organization, transformed a sovereign democracy where there were
free and fair general elections, which was an Islamic Republic, to Islamic Emirate of
Afghanistan, with no hope of conducting general elections or even being a sovereign power in
the word.

Aurescu said, that sovereignty has Greek and Roman origins, and it was the blend of the two
states that led to the evolution of the concept. 11 The term sovereignty originated in Greece, hence
the author discusses it.

P. Negulescu said, that the earliest traces of the term was found in the 15 Century, which is used
to elaborate the exceptional stature, non-subservience, and absolute discretion of a nation. 12
According to the author, sovereignty is used to establish the supremacy of the state. In common
parlance it is used to mean that no one is above the state. Hence, in a contemporary issue, when
United State doesn’t recognize the state of Palestine, and declares Israel to be the capital of
Palestine, the global superpower has no right to interfere within the internal affairs of any state,
or to aggravate the international dispute that has been persistent for centuries within the two
states for centuries. If the US cannot act as a mediator, between the two states who are at
loggerheads with each other, then it can’t declare without consent and proper procedure, Israel to
be the capital of Palestine.

Alexe said that within the notion which is commonly accepted in political science, there can
never be a greater entity than the sovereign structure. 13 Jacobsen said that under no
circumstances, can the sovereignty of a state be diminished, because it is the uncontrolled,

8
GEAMANU G, THE FUNDAMENTAL PRINCIPLES OF INTERNATIONAL LAW, 39 (1967).
9
MOCA G, INTERNATIONAL LAW, 123 (1983).
10
KOROWICZ M.S, INTERNATIONAL ORGANIZATIONS AND SOVEREIGNTY OF THE MEMBER
STATES, 43 (1961)
11
AURESCU B, NEW SOVEREIGNTY BETWEEN REALITY AND POLITICAL NECESSITY IN THE
INTERNATIONAL CONTEMPORARY SYSTEM, 15-17, (2003).
12
NEGULESCU P, THE COURSE OF ROMANIAN CONSTITUTIONAL LAW, 95 (1927).
13
ALEXE A, THE END OF THE FREE WORLD, 152-153 (2009).
unrestricted, and right of a State. 14 Hence it is the sovereign which can frame laws, and any
unnecessary external influence will not be entertained.

Hugo Grotius was the representative of jus-naturalism and positivist doctrine, who attempted to
define sovereignty, in terms of sovereign equality, which the global actors have recognized as an
equal right, and have formulated a policy of non-interference by superpowers and supranational
entities.

Alexe said, that a state has to manage the total assertions laid down by its citizens, and cannot
act without the representation of its people. The Romanian author Natasie said, any sort of
sovereign immunity can be derogatory. 15 These are the different interpretations stated by various
authors which have several connotations. Here it is implied by various authors, that when a state
exercises extreme supremacy, without any supervision from international agencies such as UN,
then it will be considered an arbitrary exercise of power, and it will deemed to be ultra vires. A
sovereign democracy should take into account, the collective interests of its people, and should
work according to the will and consent of its masses.

Miga-Bestlieu said, that sovereignty established its force during the time when US claimed
victory in the American War of Independence (1776) and the common French led a mutiny
against the monarchy, in the French Revolution, where they stormed into the Bastille, and freed
all their prisoners, showing the oppressive regime, that it is ultimately the people who have the
real power.16 There are articles prescribed in the French Constitution, that was the first to coin
the term national sovereignty. The way the peasants led to the end of a monarchy, and
established a liberal democaracy, reflects the fact that sovereignty, lies with the people and not
the rulers.

Sovereignty emerged in the 20 century. An earlier analysis of the term was subjected to more
lenient interpretations. According to Aurescu, international law limits the states from exercising
their complete power, and that international law is always in conflict with the traditional
interpretation of sovereignty.17 It means that international institutions can put sanctions on the
states that are violating their inherent power of sovereignty that has to human rights violations,
and other social crimes in such nations. For example, after China conducted military exercises on
Taiwan, after the visit of the Speaker of the House of Representatives, Nancy Pelosi visit to

14
JACOBSEN MC, JEAN BODIN AND THE DILEMMA OF MODERN POLITICAL PHILOSOPHY, 179-
181, (ROMAN STUDIES VOL.8, UNIVERSITY OF COPENHAGEN PRESS, 2000)
15
Nastasie GN, Philosophical Journal, 49, 1994-2007, (2012).
16
MIGA BESTILEU, INTERNATIONAL LAW: INTRODUCTION TO PUBLIC INTERNATIONAL LAW,
85, (1998).
17. AURESCU B, NEW SOVEREIGNTY BETWEEN REALITY AND POLITICAL NECESSITY IN THE
INTERNATIONAL CONTEMPORARY SYSTEM, 60 (2003).

17
Taiwan, UN has placed sanctions on China. Another example would be nations condemning the
Russian invasion of Ukraine, by refusing to buy Russian oil.

A destructive aftermath of World War would be a negative interpretation of sovereignty. It

would mean a possible abuse of power. Leon Duguit, and Gaston Jeze said, that although the
nation has a lawful character, the legal status of a state has been questioned by the critics of
sovereignty, which claim that a disputed territory has no powers of its own. A negative analysis
of sovereignty would mean that states not adhering to international law and convention, and
various authors would challenge the abuse and misuse of the political ideology.

These are international mandates that have stated that sovereignty is economic, political, and
social independence. The mandates published by international organizations dub the annexation
of Ukraine by Russia and conducting military exercises in Taiwan by China as acts of
aggression, and there being a clear violation of UN Charters, that was developed on the
principles of collective security and peacekeeping.

P.Neglescue has stated that, the advantages of sovereignty are the freedom to formulate its own
foreign policy, the establishment of the right of private defense, the freedom to calculate one’s
own political, and economic agenda.

What Role Does Sovereignty Play in Modern International Governance?

Sovereignty is one of the most important concepts in international law. In contemporary
international law, there has been a debate over sovereignty, due to the geo-political tensions
arising in different nations. Mazilu said that sovereignty shapes the political and legal identity of
a nation, where it can establish its dominance in regulating its internal state of affairs and gain
greatest protection from external influence.18

The imposition on globalization on a multi polar world has created numerous challenges for
national sovereignty. However the laws of international order states that if there is a conflict
between international law and municipal law, municipal law will prevail.

Most contemporary authors are of the view that there is no concept of shared sovereignty. A
historical example which has a contemporary reference is the Cyprus conflict. Greece and
Turkey are known to be historical rivals due to their common history surrounding the Ottoman
Empire. However the Cyprus issue is an ongoing conflict between the two states, where both the
regions want to exercise their sovereignty over the disputed territory. The Republic of Turkey
has also launched military intervention to claim the authority. In spite of its efforts, the UN

18
MAZILU D, PUBLIC INTERNATIONAL LAW, 130 (2001).
hasn’t recognized Turkish control over the territory, nor has it given any official status to
Cyprus.

There needs to be comprehensive international regulations and law to combat terrorism that has
been persistent due to devaluation of national borders. For example, cross-border infiltration is
very common in the state of Kashmir, in India; because most of the terrorists are trained in
Pakistan occupied Kashmir, to carry out terrorist activities in India.

Bakelite, Bartmann, & Srebnik explained that, even though there are separatist ideologies
looming in a modern democracy. The ideas of communalism, regionalism and the surrounding
political violence, should not lead to secession of the region from the entire State. 19 A modern
example of separatism could be the demand of Khalistan, by the Sikh community, where they
want a Sikh homeland when Operation Blue Star was carried out, under the orders of the then
Prime Minister Indira Gandhi, who carried out a military intervention in the Golden Temple in
Amritsar. The demand for Khalistan cannot be authorized, as Sikhs form an integral part of
Indian pluralism, and most of the Sikhs consider themselves to be Indians, and a small fraction of
the minority, want independence.

When Kosovo wanted to be independent of Serbia, Romania did not recognize the existence of
Kosovo. However if Kosovo gained Romanian recognition, it would flourish the trade route
between Belgrade and Prussia. Hence due to this strategic enhancement, the Prime Minister of
Romania has claimed that Kosovo is independent of Serbia.

Earlier Russia did not consider Kosovo to be an independent state, but presently it thinks that,
this separatist movement can connote a landmark event in international law. There was a
referendum held in Russian Federation, which led to the illegal annexation of Crimea, which was
a part of Ukrainian territory. In this case the NATO Secretary General questioned the legitimacy
of the conquest. The Russian invasion of Ukraine violates international law and discredits
Ukrainian sovereignty. This is also when Russian intervention was deemed to be illegal by the
European Union and also political sanctions was also imposed.

The sanctions placed on Russia’s interventionist policy have worsened the geo-political tensions
and deeply disturbed harmony between the nations. However other nations have agreed to solve
their disputes by adopting the art of diplomacy.

Hardt and Negri optimized a solution to the problem of sovereignty, which is the development of
bio-power, which is a bio-political source of power.

19
BAKELITE, BARTMANN & SERBNIK, DE FACTO STATES: THE QUEST FOR SOVEREIGNTY, (2004).
Conclusion
Nastase and Maties said that sovereignty is, ideal in nature, which is often breached by the
modern international law.20 The authors refer to the innumerable instances where a nation’s
sovereignty has been breached and there has been a violation of international law. It is the
sovereign states that uphold the principles of contemporary international law. Mazilu said that
sovereignty is used for determining collective security and peacekeeping and is essential for
developing friendly relations between nations.21 Hence in the modern era, sovereignty is a very
important notion that shapes the process of globalization, modernization and internationalization.

20
Natsase & Matise, The future of national sovereignty of Romania in the European integration perspective,
THE ROMANIAN PERSPECTIVE, (March 15, 2015, 6:00PM), http://leader.viitorul.org/:
http://leader.viitorul.org/public/568/ro/suveranitatea_romaniei%20in_ue.pdf.
21
MAZILU D, PUBLIC INTERNATIONAL LAW, 185 (vol. 1 2001).