International Law and State Sovereignty Flashcards
define international law
international law refers to the rules governing states, other international actors and the relations between states, while state sovereignty means that the state has ultimate power
these two concepts are frequently in conflict with one another and there is considerable debate about whether state sovereignty undermines international law
arguments suggesting that international law will always be undermined by state sovereignty
failures of the ICC
limitations of the ICJ
the realist argument that sovereign states will always pursue their own national interest
arguments suggesting that international law will NOT always be undermined by state sovereignty
strengths of the ICC
strengths of the ICJ
the liberal belief that states are capable of acting selflessly
conclusion
international law will always be undermined by state sovereignty
realist argument that states will always behave selfishly and therefore undermine international law
Firstly, the realist argument that states are inherently selfish and will always pursue their own national interest, often at the expense of international law, suggests that international law will always be undermined by state sovereignty.
States are sovereign and the most important actors in the international system, meaning that they are free to dismiss and undermine international law in this way.
Due to the system of international anarchy, there is no higher power than the state and therefore no higher authority to prevent sovereign states violating international law.
Realist thinkers may point to the Iraq War of 2003 as an example of selfish states undermining international law in the national interest.
Although the US attempted to justify the intervention on humanitarian grounds, many critics argue that the real reason for the intervention was to increase the USA’s influence in the Middle East and gain access to Iraqi oil reserves because Iraq is at the centre of the Gulf, a region with at least 25% of world oil production in 2003 and contained more than 60% of the world’s known reserves.
However, in doing so the USA had acted unilaterally, invading without UN approval, leading many to argue this intervention lacked legitimacy and undermined international law.
Furthermore, in 2003, in response to being asked whether his policy in Iraq was contrary to international law, George Bush said “International law? I better call my lawyer. He didn’t bring that up to me”.
This case, and the realist argument as a whole, demonstrates that state sovereignty will always undermine international law.
the liberal argument that states are capable of acting selflessly so will not necessarily undermine international law
However, this argument is challenged by the liberal argument that states may be sovereign, but this does not mean they will always undermine international law.
Liberals believe that states are capable of acting altruistically rather than always pursuing their own national interest.
This means that cooperation between states, and consensus on international law, is very much possible.
States generally accept the binding authority of international law since it provides a framework for international cooperation and guards against the dangers of global anarchy.
This can be seen in the fact that 139 states have signed the Rome Statute (the founding document of the ICC) and 118 have ratified it.
Therefore, international law is not necessarily always challenged by state sovereignty as states can pool their sovereignty and cooperate to uphold international law.
successes of the ICC suggests that state sovereignty does not always undermine international law
Alternatively, some argue that the numerous successes of the ICC suggest that while international law may be theoretically constrained by the existence of state sovereignty, in practice international law tends to be upheld by sovereign states.
The ICC is the organisation that prosecutes individuals for crimes against humanity, genocide and war crimes.
By convicting human rights abuses before an international court, the ICC establishes precedents for the development of international human rights-based law.
For example, the ICC successfully prosecuted the Congolese warlord Thomas Lubanga for recruiting and using child soldiers and he was eventually sentenced to 14 years imprisonment.
Moreover, its persecution of Laurent Gbagbo, former president of the Ivory Coast, has reinforced the principle that heads of state are morally responsible for their actions.
The fact that a large number of states have accepted that these crimes can be tried at an international court suggests that there is a little less anarchy in the international system, and that states are not as sovereign as they once were.
Such successes and influence of courts that uphold international law suggest that international law is not always undermined by state sovereignty.
failures and limitations of the ICC suggest that state sovereignty does undermine international law
On the other hand, the standing of this argument is considerably constrained by the numerous failings and limitations of the ICC and the abundance of examples where states have ignored ICC rulings.
While many states have signed up to the Rome Statute, some countries, including the USA, China, India and Israel, are not bound by the full requirements of the court.
Similarly, in October 2016, South Africa, Burundi and Gambia announced that they were going to withdraw from the Rome Statute, and other African countries may follow.
Russia also seems likely to withdraw from the Rome Statute, perhaps because it may face punishment over the annexation of Crimea and its actions in the Syrian Civil War.
With so many powerful countries absent or threatening to withdraw, the ICC only provides partial justice and cannot claim to uphold international law.
This demonstrates that sovereign states, who are free to withdraw from such organisations, are capable of severely undermining international law.
strengths of the ICJ suggest that state sovereignty does not always undermine international law
Finally, the ICJ is the principal judicial organ of the UN and adjudicates on disputes between UN member states.
The continual influence and power of this court seems to illustrate that international law is not undermined by state sovereignty.
States, more often than not, observe the decisions of the ICJ as these decisions have moral power, with a high cost to the reputation and legitimacy of states who defy the court.
This argument is evidenced by the successes of the court.
For instance, in 2002, the ICJ ruled on a border dispute between Cameroon and Nigeria which had sparked violent confrontation in the 1980s and 1990s.
The ICJ awarded the Bakassi Peninsula to Cameroon and the dispute was resolved, with the Peninsula being handed over by Nigeria in 2008.
This example suggests that rather than weakening international law, sovereign states often adhere to it and actually seek it out, signifying that state sovereignty does not always undermine international law.
failures of the ICJ suggest that state sovereignty does undermine international law
But yet again, these successes are challenged by the weaknesses and limitations of the ICJ and the ever present threat that state sovereignty has on the ability of this court to uphold international law.
First of all, the ICJ has no enforcement powers and states have to sign up to be bound by ICJ decisions, also having the option to withdraw their commitment at any time and therefore undermine its influence.
State sovereignty also means that no states actually have to adhere to the rulings, even if they have signed up to the court.
This can be seen in 1984, when Nicaragua brought a case arguing that the USA had violated international law by supporting the Contras in the rebellion against the government.
The ICJ ruled in Nicaragua’s favour but the USA said that the court had no jurisdiction and ignored the ruling.
This is a clear example of international law being undermined by state sovereignty.
Therefore, overall, international law can be said to always be undermined by state sovereignty, or at the very least always threatened by it.
