'Modern developments in International law have weakened the notion of state sovereignty.' Discuss

        Following the establishment of the European Court of Human Rights any citizen in an EU state now has the right to appeal to this court when dealing with a case of a breach of Human Rights. The fact that this court can take an appeal from, for example, the Supreme Court, which is the highest court in the UK and overturn it raises questions regarding this state’s judicial sovereignty. The non-binding nature of ECHR decisions is a factor in favour of the argument that the nation state has remained sovereign despite these developments. Although in theory these decisions are not binding on domestic courts, they merely have to be taken into account; in practice UK courts have not wavered from ECHR decisions. A nation’s power is not sovereign if its judicial decisions of the highest level are to some extent controlled by an international body. ‘Personal supremacy of the state over its nationals has been eroded by human rights law, increasing acceptance of dual nationality with rights of one state of nationality against the other.’ EU member states are no longer judicially sovereign. The ECHR is practically superior, giving both it and the individuals who are free to appeal to this court a power above and beyond that of the state.

        The International Court of Justice, another international judiciary, has the power to bring states to court and judge their actions in a court of law. On the surface this certainly seems like an affront to the notion of state sovereignty, however, due to the lack of effective enforcement methods at the court’s disposal, decisions made are often weakened and sometimes meaningless. In the Case of The Republic of Nicaragua v. The United States of America (1986), a case that involved the US funding rebels in Nicaragua, the US did not attend the court case after the ICJ rejected the argument that it did not have the jurisdiction to hear the case and were not affected by the decision in any significant way because they vetoed the UN security council from enforcing sanctions in the form of compensation. The Court simply did not have the power to sanction a world superpower. According to Rosenne: ‘non-compliance may give rise to new political tensions, and the efficacy of the post-adjudicative phase is not determined by another judicial examination, but rather by immediate political action.’Whilst this notion seems reasonable in the case of nations with relatively small political influence, it does not hold firm when dealing with global superpowers. It is unlikely that a global body would be willing to initiate immediate political action. This is exemplified by the fact that following the Nicaragua case, there was no notable political backlash against the US. When dealing with the actions of nations as a whole, the recent developments in public international law have done little to undermine state sovereignty. However, when it comes to dealing with the individuals within nations the developments have had an adverse effect on the notion of state sovereignty. Nations can chose to comply with international court decisions, but only if this suits them. Due to troubles with enforcement this is especially true of the more powerful nation states.

        So far I have only discussed the impact of the international courts that have been set up. I will now deal with the legislation that regional or world bodies have created and the effect that that has had upon sovereignty. In a dualist system such as the UK, international treaties and agreements do not become a part of domestic law unless they are legislated in by parliament. This means that the ECHR and the UDHR are not binding on UK courts. However, the UK did create a domestic human rights bill in the form of The Human Rights Act 1998. In theory this does not affect the notion of state sovereignty, because the HRA was produced by the state just like any other domestic legislation. In practice, political influence to some extent may be persuasive in enforcing a treaty that is not binding on a state, but the only legislation that is truly binding on the UK is the HRA. However, regardless of whether nations have ratified them or not, all nation states are subject to jus cogens. Jus cogens, also known as peremptory norms are unwritten principles that are binding upon all nations. They have a high status exemplified by the fact that any treaty or international agreement that conflicts with them is void. These principles, being created by the international community, but enforceable against nation states clearly have an effect on the notion of sovereignty. Parliament is not the highest source of law if it can be overridden by international principles. In practice it is likely that most domestic governments would agree with the jus cogens principles and would be willing to work them into domestic legislation if necessary. However, this is an assumption, and the fact remains that these principles exist in a higher capacity than state law weakens the notion of state sovereignty.

        Comparatively, the rise of international bodies has had a lesser effect on state sovereignty. Whilst they are having an effect on world affairs, they are not imposing themselves on the notion of state sovereignty.

        When dealing with the practical aspect of international law, Henkin summarises well: ‘Most states obey international law most of the time.’ However, the fact that international law is sometimes contravened does not mean that its effect on state sovereignty is void. The classic argument given is that just because there is murder, does not mean that criminal law is useless. The fact remains that should a nation so choose, it could contravene public international law. The state is still sovereign, because it is still free to make state decisions and in some cases expect ineffective sanctions. State sovereignty has been weakened slightly due to the fact that governments must take into account possible political reactions before acting in a manner that contradicts international law, but the state itself has the final say. I think we must draw the distinction, as Oran Young does: ‘I think that there are differences in being obligated to do something because of a moral reason, a normative reason and a legal reason.’ I would add to this list the possibility of compliance for an expedient political reason. The legal implications of the recent developments in public international law are of little relevance to state sovereignty when discussing the European Court of Human Rights, but of more relevance when discussing ICJ decisions. Whereas, vice versa can be said of the normative and political implications.

Bibliography

P. Malanczuck – History and Theory, Akehurst’s modern introduction to international law (1997)

B. Kingsbury – Sovereignty and Inequality, EJIL 1998 9 (599)

H. Koh – Why do nations obey international law?, 106 Yale L.J. 2599

V. Lowe – Introduction and Overview, The Ambit of International Law

J. Austin – The Province of Jurisprudence Determined

S. Rosenne – The law and practice of the international court 1920-1996

West’s encyclopaedia of American Law