Contemporary International Law and the Question of Sovereignty: An Attempt at Reconciliation
Las Fuentes del Derecho Internacional en la Era de la Globalización, Mónica Pinto (Comp.), Editorial Universitaria de Buenos Aires, 2009
77 Pages Posted: 6 Aug 2012
Date Written: May 10, 2008
The notion of sovereignty has always been and remains today one of the central preoccupations of the discipline of international law. Sovereignty is the foundation for many of the most basic and fundamental principles of international law, such as the independence of States, autonomy and its corollary of non-intervention, the concept of sovereign equality, territorial integrity, as well as functioning as the underlying principle of the sources of international law apparatus. This paper attempts to sketch a different perspective about the notion of sovereignty, its meaning, its status within the international law discipline and its compatibility with the internationalist project.
My hypothesis is that international lawyers have become fixated with an image of sovereignty, typically referred to as traditional or classical, that presents the notion as a juridical absolute, the expression of unbound State power, wielded against the values of the international community and in detriment of the possibilities of international cooperation. This is the notion of State sovereignty against which the discipline has rallied almost in unison. However, an examination of some of the different theoretical perspectives on the question of sovereignty across time does not lend support to such an image and only approximates it during the end of the nineteenth century, perhaps more as a result of the practice of States than of the writings of jurists. I argue then that these calls for the elimination, the reduction or the deconstruction of sovereignty constitute a crusade against a notion that never existed as such and that, therefore, this qualifies the whole enterprise and forces us to reconsider the question in more detail. Further, I attempt to engage, albeit briefly, the fundamental arguments of these projects and to demonstrate that their substance is not supported by what sovereignty implies and, finally, I attempt to briefly discuss the possibility, as well as the value, of reconciling the notion of sovereignty with the methodology and the aspirations of the discipline of international law.
In the first part of this paper, I present and discuss four different sets of ideas about the notion of sovereignty, its distinguishing features, the image of the State in its relation to others, its role in the discipline of international law and the impact that each of these different conceptions has on the way in which those that developed them conceive the possibility of order among autonomous political units, the uneasy relationship between liberty and limits that is at the center of the idea of sovereignty and the advancement of their own disciplinary projects.
The second part of this paper attempts to looks at contemporary discourse on the question of sovereignty within the international law discipline and attempts to critically discuss some of its very specific features. In particular, I distinguish between two strands of theory about sovereignty in current international law. On the one hand, some scholars argue that recent developments both intrinsic and extrinsic to the discipline – such as the rise of human rights law, or the seemingly unstoppable forces of globalization – have eroded, and continue to erode, the notion of sovereignty and put into question what value it may continue to have, both theoretically and pragmatically. On the other, the argument developed is that there are certain features of the notion of sovereignty that have brought along negative consequences, such as facilitating abuses of power or contributing to an inherent instability of the international system, among others, and that it is therefore necessary to re-conceptualize, deconstruct or eliminate the notion altogether. I attempt to address these arguments in two different ways. First, by placing them again a history of what the discipline understood the meaning and character of sovereignty to be and, thus, illustrating that what is at the root of these arguments about sovereignty may actually be a false premise, that the image that was developed about the classical mode of argument does not in fact correspond to the postulates of early international legal scholarship. Second, regardless of how they relate to what they perceived to have been the traditional concept of sovereignty, I try to address the merits of these arguments and to discuss whether they are sound either in their depiction of the contemporary meaning and value of State sovereignty or if their calls for reducing or elimination such idea are sensible from the perspective of how it would help or hinder the pursuance of the values that may be shared by those that participate in the discipline.
The third and final part of the paper attempts to build upon the questions discussed and to explicitly argue that not only a reconciliation of the notion of sovereignty with the aspirations of the cosmopolitan project is possible but also that it is necessary and desirable. In doing so, I draw from the parallel domestic-liberal concept of individual liberty, as both notions bear an obvious resemblance and yet what appears evident, if not uncontroversial, to legal scholars in the field of constitutional theory goes unacknowledged for international lawyers, or at best does not come with a realization about what intrinsic limit it implies for the conduct of States, in the field of international law. Thus, I return to the proposition that sovereignty is not now, nor was it ever, a juridical absolute and discuss what are the limits for the conduct of States that are intrinsic to the idea of State sovereignty, as well as the obligations that arise from them, and argue that the notion so conceived is perfectly compatible with the project and the values of international lawyers, at least to the extent that this project does not include a more cosmopolitan aspiration or until such aspiration becomes a factual possibility.
Keywords: International Law, Sovereignty, History of International Law, Globalization
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