Sovereignty and statehood I
2013
Leila Brännström
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:
1. 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.
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…
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
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.
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
The emergence of state
sovereignty
- originally sovereignty was a theological
notion
- at the dawn of the modern era the notion
was secularized and projected on
absolute rulers
- later projected on the state as such
- later also projected on the people/nation
- however, for the purposes of IL,
sovereignty remained with the state as
such well into the 20th century
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 nonhierarchical, decentered and
pluralistic.
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
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).
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.
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
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”.
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?
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
“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).
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.
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.
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’
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”
Today restrictions on state
sovereignty “pertain to the normal
picture of international relations
and cannot be termed an unusual
exception” (Tomuschat 171).
Rights arising from sovereign
statehood
- Continued existence
- Self-determination
- Acceptance as the basis for
legal obligation
- State immunity
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’
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.
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”
The right to national selfdetermination
- The principle of national selfdetermination 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