State Sovereignty and Non-Interference in International Law

A Critical Appraisal


Master's Thesis, 2018

139 Pages, Grade: 3.6/4


Excerpt

TABLE OF CONTENTS

DEDICATION

ACKNOWLEDGMENTS

ABSTRACT

TABLE OF CONTENTS

LIST OF CASES

LIST OF STATUTES

LIST OF ABBREVIATIONS

CHAPTER ONE GENERAL INTRODUCTION
1.1 BACKGROUND TO THE STUDY
1.2 STATEMENT OF THE RESEARCH PROBLEM
1.3 RESEARCH QUESTIONS
1.4 OBJECTIVES OF THE STUDY
1.4.1. General objective
1.4.2. Specific objectives
1.5 RESEARCH METHODOLOGY
1.6 THEORITICAL FRAMEWORK
1.7 LITERATURE REVIEW
1.8. JUSTIFICATION OF THE STUDY
1.9. SIGNIFICANCE OF THE STUDY
1.10 SCOPE OF THE STUDY
1.11 DEFINITION OF KEY TERMS
1.12 SYNOPSIS OF CHAPTERS

CHAPTER TWO UNDERSTANDING SOVEREIGNTY AND NON-INTETFERENCE IN INTERNATIONAL LAW
2.1 THE ISSUE OF STATE SOVEREIGNTY
2.2. SOVEREIGNTY AND INDEPENDENCE
2.3 TYPES OF SOVEREIGNTY
2.3.1 Internal Sovereignty
2.3.2. External Sovereignty
2.3.3. De facto and De jure Sovereignty
2.3.4 Legal Sovereignty;
2.3.5. Political Sovereignty
2.3.6. Popular Sovereignty
2.4. Sovereignty as a problematic concept
2.5 NON-INTERFERENCE IN INTERNATIONAL LAW
2.5.1 Historical Evolution:
2.5.2 Theoretical Implications:
2.5.3 Practical Applications:
2.6 Sovereignty and Non-Interference Interrelated
2.7 Different forms that Interference may take which undermine the Sovereignty of a State
2.8. LEGAL PROVISIONS ON SOVEREIGNTY AND NON-INTERFERENCE.
2.8.1 ARTICLE 2(4)
2.8.2 ARTICLE 2(7)

CHAPTER THREE CASE STUDY: VIOLATIONS OF STATE SOVEREIGNTY AND THE NON-INTERFERENCE PRINCIPLE
3.1 NICARAGUA V. UNITED STATES
3.1.1 BACKGROUND AND HISTORY OF US. INTERVENTION IN NICARAGUA
3.1.2 NICARAGUA’S SUBMISSION
3.1.3 JUDGMENT
3.2 NATO’S INTERFERENCE IN KOSOVO (1999)
3.3. IRAQ’S INVASION OF KUWAIT
3.3.1. INTERNATIONAL RESPONSE TO IRAQ’S INVASION OF KUWAIT

CHAPTER FOUR RESPONSIBILITY TO PROTECT
4.1. ORIGIN
4.2. R2P IN PRACTICE
4.2.1. Kenya 2007/
4.2.2. Ivory Coast
4.2.3. Libya
4.2.4. Central African Republic (CAR)
4.2.5. Syria
4.2.6. Burundi
4.2.7. Cameroon Anglophone crisis and the call for Responsibility to Protect
4.3. SOVEREIGNTY AND RESPONSIBILITY TO PROTECT
4.4. SOVEREIGNTY AS RESPONSIBILITY TO PROTECT

CHAPTER FIVE EXCEPTIONS TO THE PRINCIPLES OF SOVEREIGNTY AND NON-INTERFERENCE
5.1 Intervention by Invitation
5.2 Admissible Countermeasures by a State
5.3. Humanitarian Intervention
5.4 Interventions to Protect Nationals Abroad
5.5. Collective Intervention
5.6 Assistance for Insurgents/Right to Self-Determination
5.7 Self-defense

CHAPTER SIX CONCLUSION AND RECOMMENDATIONS
6.1. CONCLUSION
6.2 DISCUSSION OF FINDINGS AND RECOMMENDATION

REFERENCES

DEDICATION

This research is dedicated to my fallen heroes, grandfather and mother Tonga Benjamin

Vefonge and Cecilia Nduma Tonga Vefonge.

ACKNOWLEDGMENTS

The success and final outcome of this project required a lot of guidance and assistance from many people and I am extremely privileged to have got this all along the completion of my project. All that I have done is only due to such supervision and assistance, and I would not forget to thank them.

I express my heart-full gratitude to my supervisor Professor Jonie Banyong Fonyam for all the corrections made, his patience and guidance throughout this research project.

I place on record my sincere appreciation to all my lecturers, most especially Dr. Sone Patience, Barrister Agbor Balla, Prof. Irene Sama-Lang, Dr. Lekunze Benvolio, Dr. Emmanuel Ekome and Mr Kensa Etienne who made valuable and enriching comments necessitating the completion of this project.

I am extremely thankful to my parents Mr. Ngomba Elinge, Cecilia Nduma Elinge of blessed memory and Hannah Mosome Tonga for their relentless commitment towards my education generally and particularly to this thesis. Not forgetting my brother Eseya Mengu Junior who always made out time to adjust my work.

Thanks to my friends, Pontus Joseph, Akwe Ngole, Check Roland, Chungong Cleatine, Anya Vincent, Bechem Emmanuel, Samuel Mbene, Samuel Chidibere, Bouh Yolande, Mende Julie, and the entire LL.M class of 2016, for expecting nothing than excellence from me.

My sincere apologies to those whose names i didn’t mention. I am grateful.

ABSTRACT

The principles of state sovereignty and non-interference rest at the very heart of International law and springs from the 1648 Westphalian treaty. Westphalian sovereignty is the principle of international law that each nation state has sovereignty over its territory and domestic affairs to the exclusion of all external powers. This is founded on the principle of non-interference in another country’s domestic affairs and that each state irrespective of its size is equal in International law. This study shall rely principally on the doctrinal research methodology by systematic and thematic analysis of existing data on sovereignty and non-interference. The interpretation of sovereignty as narrowly as the non-intervention principle has placed sovereignty against the possibility of intervening for the protection of Human rights. The Rwanda genocide, mass atrocity crimes and crimes against humanity that characterized the state of Rwanda and Srebrenica amongst others raised the need for action by the International community to protect not only states, but also people. This thesis attempts therefore, to find a bridge between these two seemingly opposing interests -protecting the state for a strong international order and protecting the people to save lives. Responsibility to protect is based on the notion of a primary responsibility with each and every state to protect its population, and a secondary responsibility with the international community to assist a state, which is unwilling or unable to protect its people. This thesis concludes that responsibility to protect is part of sovereignty, as a duty of a state, corresponding to the right of non-intervention. If the reign fails to protect its people, or is itself abusing its people, the right of non-intervention becomes void.

KEYWORDS: Sovereignty, Non-interference, Responsibility to Protect.

LIST OF CASES

Caroline Case 18372 Moore Digest of International Law (1906)

Case Concerning the Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) 2005 (Judgment) (Merits) ICJ Reports 2005

Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits) 1986 ICJ Reports 1986

Corfu channel (UnitedKingdom v Albania) (Merits) 1949 ICJ Report 1949

International Criminal Tribunal for Former Yugoslavia in (Prosecutor v.Tadic) 1995

LIST OF STATUTES

International

Covenant of the League of Nations (signed at Versailles, France, 28 June 1919)

Montevideo Convention on the Rights and Duties of States (singed at Montevideo, Uruguay, on Dec. 26, 1933)

Vienna Convention on Diplomatic Relations (Done at Vienna on 18 April 1961, entered into force 24th April 1964)

Charter of the United Nations (signed 26 June 1945, entered into force 24th October 1945)

Declaration on principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the charter of the United Nations 24th October 1945

International Covenant on Civil and Political Rights (Adopted and opened for signature, ractification and accession by General Assembly resolution 2200A (XXI) of 16 Dec. 1996

Domestic

1996 Cameroon Constitution (Law No 96/06 of 18 January 1996 to amend the Constitution of 2 June 1972)

LIST OF ABBREVIATIONS

Abbildung in dieser Leseprobe nicht enthalten

CHAPTER ONE GENERAL INTRODUCTION

1.1 BACKGROUND TO THE STUDY

The principles of state sovereignty and non-interference remain at the very heart of international law and can be traced as far back as the treaties of Munster and Osnabrück signed in 1648, commonly referred to as the treaty of Westphalia.1 State sovereignty or Westphalia sovereignty is the principle of international law that each nation-state has sovereignty over its territory and domestic affairs to the exclusion of all external powers. This is founded on the principle of non-interference in another country’s domestic affairs and that each state, irrespective of its size, is equal in international law sequel on the sacrosanct principle of recognition, either de facto or de jure. After European influence spread across the globe, these principles of state sovereignty and non-interference became ideals central to international law2.

The principle of sovereignty underlines the contemporary international system of states. The origin of this system is often traced in scholarly and popular literature to the Peace of Westphalia signed in 1648, to end the thirty years war. Looking at the historical context of the Peace Treaty, the main purpose does not seem to be the equality of sovereign states, but weather restraining the influence from the Roman Empire. After reading the treaty, it becomes evident that the concept of sovereignty is rather decolonization from the Empire, than an international system of sovereign equality and non-interference.

The states system dates from the peace of Westphalia.3 The core elements of that sovereignty based system were codified in the Montevideo Convention on the Rights and Duties of States 1933. The attributes of statehood include effective government, territory and people. Sovereignty is thus the fundamental principle on which contemporary world order rests, affirmed by the International Court of Justice (ICJ) and expressed in the UN Charter Article 2(1). Externally, sovereignty means the legal identity of the state in international law and equality of status with all other states and the right to be the sole legal personality to international relations on behalf of a people.

The juridical equality of states can exist alongside extreme disparities in size, wealth, power and status. States were sovereign and equal, and therefore no one state could presume to judge whether another’s cause was just or not. States were bound to honor agreements and respect the independence and integrity of other countries and had to try and resolve differences by peaceful methods. Sovereignty therefore originated historically in the European search for a secular basis of state authority in the sixteenth and seventeenth centuries.4 It embodies the notion that in every system of government there must be some absolute power of final decision, which was the very essence of the Peace of Westphalia. The principle of non-interference is the most important embodiment of the notion that states are autonomous entities and its ancestry also can be traced back to Westphalia.5

The orthodox or traditional view of the Westphalian system is that the Peace of Westphalia was an agreement to respect the principle of territorial integrity. In the Westphalian system, the national interests and goals of states and later nation-states were widely assumed to go beyond those of any citizen or ruler6. States became the primary institutional agents in an interstate system of relation. The Peace of Westphalia is said to have added attempts to impose supranational authority on European states. The Westphalian doctrine of states as independent agents was bolstered by the rise in the 19th century thought of nationalism, under which legitimate states were assumed to correspond to nation-groups of people united by language and culture.

The Westphalian system reached its peak in the late 19th century. Although practical considerations still led powerful state to seek to influence the affairs of others, forcible intervention by one country in the domestic affairs of another was less frequent between 1850 and 1900 than in most previous and subsequent periods7. The Peace of Westphalia is important in modern international relations theory and is often defined as the beginning of the international system with which the discipline deals8.

However recent scholarships suggest that the Westphalian treaties actually had little to do with the principles of sovereignty, non-intervention and the legal equality of states with which the treaties are often associated. For instance, Osiander writes that “the treaties confirm neither France’s nor Sweden’s sovereignty nor anybody else’s, least of all do they contain anything about sovereignty as a principle”9. In the same line with the modern views on the Westphalian system, and in a symposium on the continuing political relevance of the Peace of Westphalian, Javier Solana, NATO secretary General said that “humanity and democracy are two principles essentially irrelevant to the original Westphalian order” and levied a criticism that the Westphalian system had its limits. For one, the principle of sovereignty, if relied on also produced the basis for rivalry not community of states, exclusion and not integration.10

However, despite these criticisms and debunk of the Westphalian sovereignty on the basis of its strict non-interference tendencies, it behooves to reckon that the paradigms of sovereignty and non-interference in International law saw the light of day with the Peace Treaty in 1648. Leo Gross hailed the Peace of Westphalia as the majestic portal leading from the old world into the new. Gross strongly held the Peace Treaty as the nascence of International law, creating a new system characterized by the coexistence of a multiplicity of states, each sovereign within its territory, equal to one another and free from any external earthly encumbrances, and this was the essence, the rational, more or less the mainstream view of the Peace of Westphalia.11

1.2 STATEMENT OF THE RESEARCH PROBLEM

The betone nature of state sovereignty and non-interference in international law has provoked a huge response within the international community. The appreciation of the concepts of sovereignty and non-interference provokes an avalanche of problems amongst legal scholars. Following the end of the thirty years war ending with the Peace of Westphalia, the international community was said to be on motion towards contemporary International law. Sovereignty is one of the oldest notions of modern International law and is mainly debated during times of crisis or conflict. The exact meaning seems difficult to grasp, even more so as many scholars insist on knowing the ‘true sovereignty’. In Bruno Simma’s commentaries to the UN Charter, Fassbender notes that “one who cannot acknowledge the untamed side of sovereignty cannot fully understand it”12.

The issues of globalization and the complexity of international life, has left a significant imprint on the concept of state sovereignty.13 Most often than not this concept of state sovereignty and non-interference, is seen as an emblem and symbol of the all-powerful states, hiding under the canopy of sovereignty to commit mass atrocity crimes. With such in mind, the question that springs up is, can there be true sovereignty and can the principle of non-interference if upheld promote Human right values and international peace?. There is therefore the need to revisit the definition of these concepts so to accommodate the key values of international order and respect for Human rights. A dichotomy of sovereignty and protection was emphasized and posed a seemingly insolvable problem for the entire International community. If for instance an intervention for protection of human rights was a violation of sovereignty, and sovereignty was the stronger of the two, how would the international community be able to protect human lives in cases of genocide? As most scholars like Hugo Grotius, used the phrases ‘Westphalian sovereignty’ or ‘traditional sovereignty’, it is evident that sovereignty was also seen as something historic and constant over time.14 Sovereignty was seen as a static non-intervention principle, which protected the state but not the people. The interpretation of sovereignty as narrowly as the non-intervention principle during the 1990s, placed sovereignty against the possibility of intervening for the protection of Human rights.

Respect for the political and territorial sovereignty of other nations is a fundamental feature of the international system and the key to maintaining a system in which the nation-state is the primary actor in global affairs. Underpinning this concept of sovereignty is the basic rule that nation-states must refrain from intervening in the domestic affairs of another state; however there is a problem with this accession, most often than not bigger states violate the sovereignty and territorial integrity of smaller states with impunity such as US in Nicaragua 1981. There is therefore the need to address such problems so as to fully appreciate the notion of sovereignty.

1.3 RESEARCH QUESTIONS

In this study, we shall attempt to provide answers to these questions which constitute the very basis for this research. These questions include inter alia;

- Can true sovereignty be upheld?
- What are the problems associated with defining the term sovereignty?
- Is the protection of the state more important than its citizens?
- Can the principle of non-interference promote world order?

1.4 OBJECTIVES OF THE STUDY

1.4.1 General objective

The overall purpose of this study is to analyze the concepts of sovereignty and noninterference in International law and to reconcile the notions of sovereignty, noninterference and responsibility to protect.

1.4.2 Specific objectives

- To examine the concepts of sovereignty and non-interference in international law.
- To explore the problems associated with arriving at the true meaning of sovereignty
- To establish a case for the protection of human rights over the protection of the state.
- To evaluate the extent of respect for the sovereignty and non-interference principles.

1.5 RESEARCH METHODOLOGY

This research shall employ the didactic technique of deductive reasoning, proceeding from general analyses on sovereignty and non-interference to particular case examples. This study shall rely principally on the doctrinal research methodology, by systematic and thematic analysis of existing data on sovereignty and non-interference in International law. The methods to be employed based on the sources of data will include primary sources such as the UN Charter, secondary data sourced from published and unpublished materials such as books, journals and newspapers, collected from existing documentation on the subject matter from libraries, lecture notes. Data gathered will be analyzed via sequential reasoning and logical presentation of existing views by various schools of thought on the subject matter with the aim of developing mainstream thinking and adopting a pragmatic approach.

1.6 THEORETICAL FRAMEWORK

The framework and structure of a legal system anywhere across the world depend on the concept of sovereignty. The idea owes its roots to the sixteenth and seventeenth century Europe and has existed since then. Sovereignty is associated with authority which are embodied in organizations like nations and states which in turn are responsible for the territory under them and the people who live in these territories. The idea of sovereignty was created not for academic discourses or philosophical purposes but for real world potent challenges particularly as sixteenth and seventeenth century Europe was characterized by political upheavals.

Now, having understood the concept, it is important to look at the two prominent theories regarding sovereignty, the monistic and pluralist theory.

The Monistic theory of sovereignty asserts that the state is the supreme social institution and has a unique place in comparison to other institutes and organizations. The spearhead of this view was Jean Bodin, a French philosopher and jurist. The France in which Bodin lived and worked was struggling from the aftermath of Protestant reformation and religious conflicts. Bodin criticized the papal authority of the government and favored the unrestrained authority of the emperor; calling him the supreme law maker. Thomas Hobbes of England and J.J. Rousseau of France echoed similar views.

In the 19th century the theory of sovereignty as a legal concept was perfected by John Austin, an English Jurist. He is regarded as one of the greatest exponent of the Monistic Theory. In his book “Province of Jurisprudence Determined” (1832). Austin observed ‘if a determinate human superior, receives habitual obedience from the bulk of a given society and that determinate superior is sovereign in that society, that society (including superior) is a society political and independent.’15

To Austin in every state there exists an authority to which a large mass of citizen show compliance. This authority is absolute, unlimited and indivisible. Austin’s theory of sovereignty depends mainly upon his view on the nature of law; according to him ‘Law is a command given by a superior to inferior’ the main tenets of Austin’s theory of sovereignty are as follows;

- Sovereignty is an essential element of the state,
- Sovereignty in the state must be determinate,
- Receives habitual obedience from the bulk of, society
- Sovereignty is unlimited,
- Sovereign is the only source of law,
- Sovereignty is indivisible.

The Pluralist Theory of sovereignty emerged as an alternative to the traditional monist view. As the times changed and the relevance of social groups and institutions increased within states and nations, there was a felt need to revisit the monist view of sovereignty in the changing world. According to the Pluralist, the state needs to compete with the churches, trade unions, friendly societies, political parties etc, as they too meet the requirements of their members. The preeminence of the State over any of these institutions should be decided solely on the basis of the superiority of its moral appeal and nothing else.

The Pluralist view brings into consideration several factors overlooked by the dogmatic monist view of sovereignty. The interest of the State may not be aligned with the interest of its parts always; also, the state cannot ignore the importance and relevance of other institutes and organizations functioning within its purview. Based on this theory, sovereignty resides not with the state but it resides many other institutions. There exist many social, political, cultural and economic institutions in society and many of these institutions are prior to the state. For instance, Family and Church are prior to the state. They believe that the state enjoys a privileged position because of its wider jurisdiction, which covers all the individuals and associations within its boundary. This does not mean that it is superior to other associations. It is also true that the state has power to punish those who defy its command but that does not mean that it is absolute. The State must justify the exercise of its special powers. Some of the tenets of this theory include;

- Sovereignty is divisible,
- Powers of the sovereign are not unlimited,
- Laws are not always the command of the sovereign,
- The state is both the child and parent of law,
- The root of obedience of law isn’t coercion but the will to obey.

1.7 LITERATURE REVIEW

One of the fundamental principles on which international law rests is the principle of state sovereignty. It is the foundation of inter-state relations and the basis of the modern world order. Most of the basic norms, rules and practices of international relations have been grounded on the premise of state sovereignty. In the Westphalia International System, the ultimate power holder is the state. This particular view of sovereignty maintains that since the state is under the legal influence of no superior authority, sovereignty resides in the state, and to be sovereign is to be subject to no higher power; these ideas have been central to the traditionalist views of sovereignty.

The traditional understanding of sovereignty as independence and supreme authority may be attributed to Jean Bodin’s sixteenth-century definition of sovereignty in his work “Les Six Livres de République 1577” as the absolute and perpetual power of a state. According to Bodin, the concept of sovereignty primarily entails the absolute and sole competence of law making within territorial boundaries of a state and that the state would not tolerate any other law-creating agent above it. He maintains that sovereignty, as the supreme power within a state, cannot be restricted except by the laws of God and by natural law. No constitution can limit sovereignty and therefore a sovereign is regarded to be above positive law.16 According to Bodin’s theory of sovereignty, the sovereign power is bound by international law, which results either from treaties or from divine or natural law17.Although Bodin’s conception of sovereignty as introduced in the sixteenth century was accepted by writers on politics, the majority of these writers held the opinion that sovereignty may be restricted by a constitution and by positive law. However, in the seventeenth century Hobbes went even further than Bodin by stating that a sovereign was not bound by anything and had a right over everything, including religion.18

Sovereignty according to Francisco de Vitoria is based on the existence of a presupposed world community with an undisputed legal character and the interdependent relationship between states. Like Bodin, they subject sovereignty to the existence of a higher or supreme law. They all refer to the role of the ius gentium (law that has to be respected in the relations between states) that governs the relationship between the states comprising this world community, but differ in certain respects on its meaning and relation to international law. To him states are embedded in the common good of the world community. Hence, the interest of the community directs the aims of the state and also imposes certain limitations on the state. Sovereign independence is thus not absolute as the sovereignty of a state finds its limits in the common good of the world community to which all states are subject.19

No discussion of the concept of sovereignty is complete without reference to the ideas of the father of international law Hugo Grotius. According to Grotius, the universal and binding natural law is the primary source of international law. Natural law is supplemented by the secondary corpus of international law associated with the consent of states. Although international law is partly independent of the will of states, Grotius nevertheless sees it as binding on sovereign states.

The traditional sovereignty concept has been viewed as the independence and supreme authority of a state, thus sovereignty here is conceived as an absolute concept which implies that states are totally independent with regards to all other states and above other rules of International law. However since the beginning of the 20th century it has become increasingly apparent that the classical approach to sovereignty as absolute and unlimited authority constitutes a threat to international peace and to the existence of independent nation-states.

According to Hugo Krabbe, international law comes into existence when people from different states, as a result of external events, broaden their horizons in order to include international relations. The source of the resulting rules of international law is not the will of states, but the necessity of law felt by individuals whose interests are affected by the rule or who have a constitutional duty to take care of these interests. Therefore, national and international law have essentially the same quality. However, because international law is the law of the larger community, it takes precedence over national law. Krabbe emphasizes the role of the universal community in determining the formation and demise of states and the parameters within which they may exercise their authority.20 He envisages the eventual establishment of a so-called world state which is founded upon popular representation and is able to enforce a world-wide sense of right. The development of such an absolutist world state may finally result in the disappearance of individual states or the degrading of these states into mere executors of the aims of the universal community21.

Leone Duguit is of the opinion that the state is no longer a sovereign power issuing its commands. He argues that the idea of public service replaces the idea of sovereignty. To him the concept of sovereignty is in the process of disintegration insofar as the idea of public service increasingly forms the foundation of modern state theory.22 He describes public service as those activities that the government is bound to perform. These activities display an internal as well as an external (international) character as the result of the interdependence between states.23 The recognition of individual rights simultaneously determines both the direction and the limit of public activity. It thus constitutes the source of all rules regulating the relationship between individuals and the state.

Hans Kelsen on his part disputes the sovereignty of the state; he follows a different argument from those of Krabbe and Duguit. Kelsen identifies a certain hierarchy of norms, at the top of which the norm of international law can be found.24 According to him there are two possible Grundnormen in the international sphere, namely the supremacy of the municipal system or the supremacy of international law.25 By applying a monistic view to the relationship between international law and municipal law, he declares that the Grundnorm of the international system assumes the primacy of international law. Because in practice nations recognize the equality of each other’s legal order, the doctrine of equality must mean that they recognize a Grundnorm higher than the Grundnormen of their own legal orders. The equal force of their national systems is only possible if the existence of a higher authority is assumed, which bestows equality. Kelsen attributes the binding force of international law to international custom, for example the principle of pacta sunt servanda. The binding force of international custom forms the Grundnorm which is inherent in every legal system. By emphasizing the supremacy of international law, Kelsen foresees the eradication of the border line between international and national law, the creation of a universal legal community and the eventual emergence of a world state. In so far as national legal orders are nevertheless referred to as sovereign, it simply means that these legal orders are subject only to the international legal order.26

After examining the perceptions of different authors as to the true nature of sovereignty; it flies on the face of logic that the application of the traditional sovereignty will lead to enormous injustices since sovereignty rests with the state to the total exclusion of all others. It therefore means that, states will hide under the canopy of sovereignty to commit crimes and human rights violations with impunity. This position does not reflect the very realities of human existence as there is always the need for intervention by the international community to help combat such excesses. Our submission is that municipal laws should not be ranked equally with international law. Agreeing with Kelsen’s hierarchy of norms, international laws ought to give validity to municipal laws and states must avoid creating laws which contradict duly ratified treaties based on the sacrosanct principle of Pacta Sunt Servanda ( agreement must be kept). In the Cameroonian context, Article 45 of the 1996 constitution becomes relevant as it states categorically that “all duly ratified international treaties shall override national laws”. The rationale behind this modern approach is essentially founded on the need for the protection of human rights, rules forbidding the use of force, humanitarian intervention and the responsibility to protect which will be looked at in extensio in subsequent chapters.

In international law therefore, the essential aspect of sovereignty will be that all states should have supreme control over their internal affairs, subject to the recognition of limitations imposed by international law. However, no state or international organization may intervene in matters that fall within the domestic jurisdiction of another state as outlined in a declaration on principles of international law.27

1.8. JUSTIFICATION OF THE STUDY

The concepts of sovereignty and non-interference rest at the very heart of international law, and it is unthinkable to talk of international law without the issue of sovereignty. States are the principal subjects of international law as well as the primary beneficiaries of the concept. It is therefore necessary to carry out this study because there is a serious problem associated to the entire concept of sovereignty as more often than not, states hide under the canopy of sovereignty to commit mass atrocity crimes.

Again the definition of the term sovereignty has posed a lot of problems. Sovereignty originate from the treaty of Westphalia and the Westphalian sovereignty was the principle in international law that each nation-state has exclusive control over its domestic affairs to the total exclusion of all external powers. This definition if followed simplicita, will place sovereignty as against the protection of Human rights as was the case of the Rwanda genocide and the mass atrocity crimes in Srebrenica. The quality of this research and the analysis of this problem is very essential to press for a better definition which embodies responsibility to protect as an obligation for sovereign states.

Furthermore, the view that the concepts of sovereignty and responsibility to protect are mutually exclusives drew my attention and justifies the reason behind this study. If sovereignty is a stronger norm to responsibility which has been considered soft law, then how will the world react in cases where governments engage in violated the basic rights of its citizen. This study reconciles these concepts to enhance their proper implementation

More so, it is necessary to carry out this research because it stands to boost and develop existing literature on sovereignty and non-interference in international law. The concepts of sovereignty and non-interference are very contentious notions and remain central to international discuss.

1.9 SIGNIFICANCE OF THE STUDY

Although much criticized, the concept of sovereignty is still central to most thinking about international relations and particularly international law. The concept is condemned in context of a nation- state’s right to monopolize certain exercises of power with respect to its territory and citizens but it is still prized by those who maintain certain realist views or who otherwise wish to prevent foreign or international powers and authorities from interfering in a national governments decision and activities. It can therefore not be ignored that sovereignty is an essential ingredient of the state as it makes the state supreme in both internal and external matters.

This study on state sovereignty and non-interference in International will also be of profound relevance to the following;

- International organizations made up of state parties will benefit immensely from this study, because sovereignty is attached to a state and non-interference is the prohibition of external influence in the domestic affairs of states, thus this study will help better the relationship amongst states within the International community.
- The International community in itself stands to benefit from this study. It will get to understand the sacrosanct nature of state sovereignty and non-interference, and reconcile these principles with the responsibility to protect the human race and the need for humanitarian interventions.
- Students of Public International law and Human Rights law are amongst those to benefit from this study as it will also contribute to the academia or the existing literature on sovereignty and non-interference in International law. It will serve as a secondary source of data for researching students.
- All other interested readers and researchers in the field of Public International law can further advance this foundation study, given that it is not academically exhaustive and is open to further research and criticism.

1.10 SCOPE OF THE STUDY

This study focuses on the concept of sovereignty and non-interference in International law, tracing its origin as far back as 1648 in the treaty of Westphalia. The study also discuss the meaning of sovereignty and non-interference in International law taking cognizance of the controversy that surrounds the true meaning and nature of sovereignty. It also examines the various types of sovereignty in a bid to better appreciate the parameters of the concept.

The study looks at the various forms which interference can take, undermining the sovereignty of a state. Cases are examined to see how these sacrosanct principles of international law have been breached over time. The cases however, are limited to those condemned by the international community and not approved by the Security Council. The notion of responsibility to protect is analyzed establishing its relationship with sovereignty.

1.11 DEFINITION OF KEY TERMS

The following definitions are relevant to this study as they remain central and run through the entire work.

- Sovereignty:

The supreme, absolute and uncontrollable power by which any independent state is governed, supreme political authority, paramount control of the constitution and frame of government and its administration, self-sufficient source of political power, from which all specific political powers are derived, the international independence of a state, combined with the right and power of regulating its internal affairs without foreign dictation; also a political society, or state which is sovereign and independent.28

The power to do everything in a state without being accountable to any superior authority, to make laws, execute, apply them, to impose and collect taxes and levy contributions, to declare war or make peace, to form treaties of alliance or of commerce with foreign nations and the like.

- Non-interference:

A lack of interference, infringement, hindrance, encroachment, trespass or disturbance, not to enter into, or take part in the concerns of others.

- International law:

The system of law regulating the interrelationship of sovereign states, and their rights and duties with regards to one another. It consists of the rules and principles of general application dealing with the conduct of states and of international organizations in the international relations with one another and with private individuals and trans-national companies.

1.12 SYNOPSIS OF CHAPTERS

Chapter one is the general introduction to the study and having vividly examined it above, the other chapters will be arranged as follows;

Chapter two shall dwell essentially on be based on conceptual analysis, by analyzing the concept of sovereignty and non-interference in international law, as well as the controversial nature of the concept of sovereignty in international law, revisiting the westphalian myth of sovereignty and examining the modern approach to the notion of sovereignty.

Chapter three is entirely on case study. That is relevant cases which touch on sovereignty and interference in the domestic affairs of other states. ICJ decided cases and advisory opinions will thus be very relevant to this chapter.

Chapter four shall seek to find out if Responsibility to Protect (R2P) is part of sovereignty or merely an emerging norm in international law.

Chapter five shall focus on the instances in which the sovereignty veil can be lifted or permitted within the spectrum of international law, more or less the justifications for interference.

Finally, Chapter six shall dwell on the conclusion and possible recommendations to this challenging study of sovereignty and non-interference.

CHAPTER TWO UNDERSTANDING SOVEREIGNTY AND NON-INTETFERENCE IN INTERNATIONAL LAW

2.1 THE ISSUE OF STATE SOVEREIGNTY

Sovereignty is understood in jurisprudence as the full right and power of a governing body to govern itself without any interference from outside source or bodies. In political theory, sovereignty is a substantive term designating supreme authority over some polity. It is a basic principle underlying the dominant Westphalian model of state sovereignty.

The concept of sovereignty has been discussed throughout history, and is still actively debated.29 Its definition, concept and application, has changed throughout, especially during the Age of Enlightenment. The current notion of state sovereignty contains four aspects consisting of territory, population, authority and recognition30. According to Stephen D. Krasner, the term could also be understood in four ways:

- Domestic sovereignty - actual control over a state exercised by an authority organized within this state,31
- Interdependence sovereignty - actual control of movement across state’s borders, assuming the borders exist,
- International legal sovereignty - formal recognition by other sovereign states,
- Westphalian sovereignty - Lack of other authority over state other than the domestic authority.32

Often, these four aspects all appear together, but this is not necessarily the case, they are not affected by one another, and there are historical examples of states that were nonsovereign in one aspect while at the same time being sovereign in another of these aspects33. According to Immanuel Wallerstein, another fundamental feature of sovereignty is that it is a claim that must be recognized by others if it is to have any meaning: “sovereignty is more than anything else a matter of legitimacy and requires reciprocal recognition. Sovereignty is a hypothetical trade, in which two potentially conflicting sides, respecting de facto realities of power, exchange such recognitions as their least costly strategy.”34

Sovereignty as a concept in International law has some main features, attributes and characteristics attached to it. One of the most important features of sovereignty is its degree of absoluteness. A sovereign power has absolute sovereignty when it is not restricted by a constitution, by custom, and no areas of law or policy reserved as being outside its control. A key element of sovereignty in a legalistic sense is that of exclusivity of jurisdiction, specifically the inability to contradict the decisions made by a sovereign entity by another authority. Along these lines, the German sociologist Max Weber proposed that ‘sovereignty is a community’s monopoly on the legitimate use of force; and thus any group claiming the same right must either be brought under the yoke of the sovereign, proven illegitimate, or otherwise contested and defeated for sovereignty to be genuine.35 The absoluteness of sovereignty will therefore mean that there are no limitations what so ever on the sovereignty of the state. All associations and groups living and functioning within the state are under the control of the state. There is no internal or external control over the state. However this view has criticized on the grounds that in the modern world such an omnipotent state cannot exit, because such a state would be very dangerous for international peace and order. Thus, International law, competing branches of government and authorities reserved for subordinate entities such as federated states or republics represent legal infringements on the exclusive nature of sovereignty.

Universality is another characteristic of sovereignty; it means that the sovereignty of the state covers every individual, group and association within its boundary. Nobody can claim exemption from sovereignty of the state. However, there is an exemption to this rule. It is said that the ambassador of a country, his residence and his embassy are exempted from the sovereignty of the state founded on the basis of the principle of Extraterritoriality.

In addition to universality, the permanent, imprescriptible and inalienable nature of sovereignty can also be viewed as important features. Since the state is a permanent institution, so too is its sovereignty permanent since in very rare cases a state dies or becomes extinct for instance in cases of defeat or conquest. In civil law, if ownership over a piece of property is not exercised for a certain period (15 to 20 years) the ownership is lost. But there is no such prescribed period for the exercise of sovereignty of a state over a particular area. The inalienable nature of sovereignty on its part means that it cannot be disposed of once it has been attained.

The rationale behind state sovereignty is that states are in complete and exclusive control of all the people and property within their territory. State sovereignty also includes also includes the idea that all states are equal as states. In other words, despite their different land masses, population sizes, or financial capabilities, all states ranging from tiny Islands of Micronesia to vast expanse of Russia have an equal right to function as a state and make decisions about what occurs within their own borders. Thus since all states are equal in this sense, one state does not have the right to interfere with the internal affairs of another state based on the non- interference principle.36

Practically, sovereignty means that one state cannot demand that another state take any particular internal action. As an analogy for instance, if Canada did not approve of a Brazilian plan to turn a large section of Brazil’s rainforest into an amusement park, the Canadian reaction is limited by Brazil’s sovereignty. Canada may meet with the Brazilian government to try to convince them to halt the project. Canada may bring the issue before the UN to survey the world’s opinion of the project. Canada may even make politically embarrassing public complaints in the world media. However, Canada cannot simply tell Brazil to stop the rainforest project and expect Brazil to obey.

Under the concept of state sovereignty, no state has the authority to tell another state how to control its internal affairs. Sovereignty both grants and limits power; it gives states complete control over their own territory while restricting the influence that states have on one another. In this example, sovereignty gives the power to Brazil to ultimately decide what to do with its rainforest resources and limit the power of Canada to impact this decision.

Globalization is changing this view of state sovereignty, however. In the case of the Brazil rainforest, Brazil may consider a rainforest located wholly within its property an issue solely of internal concern. Canada may claim that the world community has a valid claim on all limited rainforest resources, regardless of where the rainforest is located, especially in consideration of issues like endangered species and air pollution.36

Similarly states no longer view the treatment of citizens of one state as only the exclusive concern of that state. International human rights law is based on the idea that the entire global community is responsible for the rights of every individual. International treaties, therefore, bind states to give their own citizens rights that are agreed on at a global level. In some cases other countries can even monitor and enforce human rights treaties against states for the treatment of the offending states own citizens as will be seen subsequently in the research.

2.2 SOVEREIGNTY AND INDEPENDENCE

State sovereignty is sometimes viewed synonymously with independence; however sovereignty can be transferred as a legal right whereas independence cannot.37 A state can achieve de facto independence long after acquiring sovereignty, such as in the case of Cambodia, Laos and Vietnam.38 Additionally, independence can also be suspended when an entire region becomes subject to an occupation such as when Iraq had been overrun by the forces to take part in the Iraq War of 2003. Iraq had not been annexed by any country, so its sovereignty during this period was not contested by any state including those present on the territory. Alternatively, independence can be lost completely when sovereignty itself becomes the subject of dispute.

The pre-world war two administrations of Latvia, Lithuania and Estonia maintained an exile existence and a considerable international recognition, whilst the entities were annexed by the Soviet Union and governed locally by their pro-soviet functionaries. When in 1991 Latvia, Lithuania and Estonia re-enacted independence, it was done so on the basis of continuity directly from the pre-Soviet republics.39 Another complicated sovereignty scenario can arise when the regime itself is the subject of dispute. In the case of Poland, the People’s Republic of Poland which governed Poland from 1945 to 1989 is now seen to have been an illegal entity by the modern Polish administration. The post 1989 Polish State claims direct continuity from the Second Polish Republic which ended in 1939. For other reasons however, Poland maintains its communist-era outline as opposed to its pre- World War Two shape which included areas now in Belarus, Czech Republic, Lithuania, Slovakia and Ukraine but did not include some of its western regions that were then in Germany.

At the opposite end of the scale, there are no dispute regarding the self-governing of self-proclaimed states such as Republic of Abkhazia, Republic of South Ossetia and the Republic of Kosovo, since their government neither answers to a bigger state, nor is their governance subjected to supervision. The sovereignty (legal right to govern) however, is disputed in all three cases as the first two entities are claimed by Georgia and the third by Serbia.

Thus sovereignty which is the broader concept will entail supreme and independent power or authority in government as possessed or claimed by a state or community, while independence entails freedom from dependence, exemption from reliance on or controlled by others. Though these terms are closely linked a jurist will not be quick to use them inter-changeably.

2.3 TYPES OF SOVEREIGNTY

Sovereignty has been seen above to mean the quality of having supreme, absolute and independent authority over a territory. It can be found in the power to rule and make laws. By having sovereignty therefore means a state is independent from other states and these other states cannot interfere with its internal affairs. There are different types of sovereignty and this will constitute the focus of the subsequent paragraphs.

2.3.1 Internal Sovereignty

Internal sovereignty has to do with the relationship between a sovereign power and the political community. With sovereignty meaning holding supreme, independent authority over a region or state, internal sovereignty refers to the internal affairs of the state and the location of supreme power within it.40 A state that has internal sovereignty is one with a government that has been elected by the people and has the popular legitimacy. Internal sovereignty examines the internal affairs of a state and how it operates. It is important to have strong internal sovereignty in relation to keeping order and peace. When you have weak internal sovereignty, organizations such as rebel groups will undermine the authority and disrupt the peace. The presence of a strong authority allows you to keep agreement and enforce sanctions for the violation of laws. The ability for leadership to prevent these violations is a key variable in determining internal sovereignty.41 The lack of internal sovereignty can cause war in one of two ways; first, undermining the value of agreement by allowing costly violations, and second, requiring such large subsidies for implementation that they render war cheaper than peace.42 Leadership needs to be able to promise members, especially those like armies, police forces, or paramilitary will abide by agreements. The presence of strong internal sovereignty allows a state to deter opposition groups in exchange for bargaining. It has been said that a more decentralized authority would be more efficient in keeping peace because the deal must please not only leadership but also the opposition groups. While the operations and affairs within a state are relative to the level of sovereignty within that state, there is still an argument between who should hold the authority in a sovereign state.

This argument between who should hold the authority within a sovereign state is called the traditional doctrine of public sovereignty. This discussion is between an internal sovereign and an authority of public sovereignty. An internal sovereign is a political body that possesses ultimate, final and independent authority, one whose decisions are binding upon all citizens, groups and institutions in society. Early thinkers believe sovereignty should be vested in the hands of a single person, a monarch. They believed the overriding merit of vesting sovereignty in a single individual was that sovereignty would therefore be indivisible; it would be expressed in a single voice that could claim final authority. An example of an internal sovereign or monarch is Louis XIV of France during the seventeenth century; Louis XIV claimed that he was the state. Jean-Jacque Rousseau rejected monarchical rule in favor of the other type of authority. Within sovereignty is the belief that ultimate authority is vested in the people themselves, expressed in the idea of the general will. This means that the power is elected and supported by its members; the authority has a central goal of the good of the people in mind. The idea of public sovereignty has often been the basis for modern democratic theory.43

2.3.1.1 Modern Internal Sovereignty

Within the modern government system, internal sovereignty is usually found in states that have public sovereignty and rarely found within a state controlled by an internal sovereign. A form of government that is a little different from both is the UK parliamentary system. From 1790 to 1859 it was argued that sovereignty in the UK was vested neither in the Crown nor in the people but in the “Monarch in Parliament”. This is the origin of the doctrine of parliamentary sovereignty and is usually seen as the fundamental principle of the British constitution. With these principles of parliamentary sovereignty majority control can gain access to unlimited constitutional authority, creating what has been called “elective dictatorship” or “modern autocracy”. Public sovereignty in modern governments is a lot more common with examples like the USA, Canada, Australia and India where government is divided into different levels.44

2.3.2 External Sovereignty

External sovereignty is the right of a nation to be free from external forces of interference that would challenge, disrupt, or remove the rights and freedoms of that nation to exist and to govern its own territory and society. It is concerned with the relationship between a sovereign power and other states. External sovereignty is connected with questions of international law, such as: when, if ever, is intervention by one country into another’s territory permissible?

Following the Thirty Years’ War, a European religious conflict that embroiled much of the continent, the Peace of Westphalia in 1648 established the notion of territorial sovereignty as a norm of non-interference in the affairs of other nations, so-called Westphalian sovereignty, even though the actual treaty itself reaffirmed the multiple levels of sovereignty of the Holy Roman Empire. This resulted as a natural extension of the older principle of cuius regio, eius religio (whose realm, his religion), leaving the Roman Catholic Church with little ability to interfere with the internal affairs of many European states. It is a myth, however, that the Treaties of Westphalia created a new European order of equal sovereign states.45

In international law, sovereignty means that a government possesses full control over affairs within a territorial or geographical area or limit. Determining whether a specific entity is sovereign is not an exact science, but often a matter of diplomatic dispute. There is usually an expectation that both de jure and de facto sovereignty rest in the same organization at the place and time of concern. Foreign governments use varied criteria and political considerations when deciding whether or not to recognize the sovereignty of a state over a territory. Membership in the United Nations requires that “the admission of any such state to membership in the United Nations will be effected by a decision of the General Assembly upon the recommendation of the security Council.46

[...]


1 Mattern Johnnes, Concepts of State Sovereignty, and International Law; With Special Reference to the Juristic Conception of the State. Baltimore. The Lawbook Exchange, Ltd (1926), pg. 200

2 Henry Kissinger. World order. Reflections on the character of nations and the course of History, Penguin Books Limited (U.S). (2014), Pg. 29

3 Treaty of Westphalia 1648, Articles LXXI, LXXIII, LXXVI

4 Benton, Lauren. A Search for Sovereignty: Law and Geography in European Empires. Cambridge University Press, (2009), pg. 196

5 The Oxford handbook on The United Nations. Edited by Thomas G.Weiss and Sam Daws (oxford university press 2009 pg 389)

6 Osiander Andreas. Sovereignty, International Relations and the Westphalian myth. The MIT Press, (2001), Vol.55, No2, pg 251

7 Croxten Derek “The Peace of Westphalia of 1648 and the origins of sovereignty” The international History Review Vol.21, No.3 (1999), pg 569.

8 Gross, Leo (January 1948). “The Peace of Westphalia” American Journal of International Law. Pg 42

9 D. Philpott, Revolution in Sovereignty: How Ideas Shaped Modern International Relations. Princeton University Press (2001) pg 352.

10 Solana, Javier (November 12, 1998) Speech on” Securing Peace in Europe” to the North Atlantic Treaty Organisation (NATO)

11 Gross, Leo. “The Peace of Westphalia”. The American Journal of International Law, Vol.42, issue], January 1948, pg 20-41

12 Pellet Alain. “The Charter of the United Nations: A commentary of Bruno Simma’s Commentary”. Michigan Journal of International Law, (2003), Vol. 25 pg.7

13 Bartelson, J. “The Concept of Sovereignty Revisited”. The European Journal of International Law, Vol.17, No.2 (2006), Pg.465

14 Spannaus, E. Grotius and the Sovereignty of Nations (1625) Grotius Society Publications pg. 39

15 Austin, John. Province of Jurisprudence Determined, Ed. Wilfrid E. Rumble. 1832, pg. 526

16 Jean Bodin. Lex six livres de Republique (1577) Book 1 chap.8 pg. 356

17 ibid 1818 http://www.thomas-hobbes.com/work/dominion.html. Accessed 10th Feb, 2018

18 http://www.thomas-hobbes.com/work/dominion.html. Accessed 10th Feb, 2018

19 James Brown. Francisco de Victoria and his Law of Nations: The Spanish Origin of International law. (1934), pg. 436

20 Krabbe Hugo. "The Juristic Theories of Krabbe". American political Science Review, Vol. 20, No 3, (Aug 1926), pg. 509

21 ibid

22 Duguit, Leone. Law in the Modern State. Cornell University Press (1921). Pg. 96

23 ibid

24 Kelsen, Hans. Pure Theory of Law. The Law Book Exchange Ltd (1970).Pg.73

25 Dias R. Jurisprudence. Ed. Butterworth’s (1970), pg. 29

26 ibid

27 United Nations General Assembly Resolution 2625 on the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations. 24th October 1970 (UN DOC A/RES/2625 (XXV).

28 Oxford Dictionary of Law. Elizabeth A. Martin, Jonathan Law (Eds) 6th Edition, Pg 504

29 Nunez Jorge Emilio. “About the impossibility of Absolute State Sovereignty: The Middle Ages ” International journal for the semiotics of law June 2015, vol 28, pg 235- 250.

30 Biersteker. T, Weber.C (1996). State sovereignty as Social Construct. Cambridge University in International Relations, vol. 46, Pg. 95

31 Krasner, Stephen D. (2001) Problematic Sovereignty: Contested Rules and Political Possibilities. Columbia University Press, New York. Pg. 6-12

32

33 Ibid

34 Wallerstein, Immanuel. World-Systems Analysis: An Introduction. Duke University Press, (2004), Pg. 44.

35 Newton, Kenneth. Foundations of comparative politics: democracies of the modern world. Cambridge University Press, (2005), Pg. 16

36 http://www.Globalization101.org International law issues in depth. Accessed April 7, 2018

37 Telmon, Stefan (1998). Recognition of Governments in International Law. Oxford Monographs in International Law Series, Oxford University Press. Pg 50.

38 ibid

39 Malksoo, Lauri (2003). Illegal Annexation and State Continuity: The Case of the Incorporation of the Baltic States by the USSR. M. Nijhoff Publishers. Pg 193

40 Heywood, Andrew. Political Theory. Palgrave Macmillan, (1990), Pg.93

41 Wolford, Rider, Scott, Toby. War, Peace, and Internal Sovereignty. University of Texas at Austin Press, (2001) Pg 1.

42

43 Heywood, Andrew. Supra Political Theory (1990), Palgrave Macmillan, Pg. 96

44 Ibid Pg 94-95

45 Andreas Osiander. Sovereignty, International Relation and the Westphalian Myth. International organization Vol. 55.No 2 Pg 251-287

46 UN Charter, 1945, Article 2

Excerpt out of 139 pages

Details

Title
State Sovereignty and Non-Interference in International Law
Subtitle
A Critical Appraisal
Course
Law
Grade
3.6/4
Author
Year
2018
Pages
139
Catalog Number
V988362
ISBN (eBook)
9783346347794
ISBN (Book)
9783346347800
Language
English
Notes
This works sets out to understand state sovereignty and non-interference in International law. The Westphalian styled definition of sovereignty was strictly founded on the basis of the non-interference principle, placing sovereignty against the protection of human rights wherein states often hide under the sovereign canopy to commit crimes. The Responsibility to Protect human rights of citizens, jettisons the strict application of state sovereignty. The state as a primary responsibility bearer, has the duty to protect its own and if it fails, the duty reverts to the international community.
Tags
state, sovereignty, non-interference, international Law, Responsibility to protect
Quote paper
Benjamin Mekinde Tonga (Author), 2018, State Sovereignty and Non-Interference in International Law, Munich, GRIN Verlag, https://www.grin.com/document/988362

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