To What Extent Does International Law Reflect the Sovereign Will of States?
'Law neither makes the sovereign nor limits his authority; it is might that makes the sovereign, and law is merely what he commands'
(Tuck, 1991)
English philosopher Thomas Hobbes’ statement from Leviathan and the normative guidelines and conceptual framework of international law undeniably coincide. The role of modern international law, which became far more universal after the creation of the United Nations, aims to regulate the behaviour of states. Despite this, as Hobbes’ expressed, the ultimate power lies in the hands of the state’s sovereign will, and international law’s regulation of behaviour does not equate to restriction of a state’s sovereignty in any form. The extent to which states are sovereign in our increasingly globalised world is a debated topic. Do states have their own jurisdiction within the international legal system?
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To What Extent Does International Law Reflect the Sovereign Will of States?
Under current international law, sovereignty is described as “the ultimate authority, held by a state, against which there is no appeal” (Holsti, 1996, 203). In other words, sovereignty is a state’s absolute authority and jurisdiction over its territory and people, allowing it to administer its law, despite some limited pressure of the international law’s conceptual guidelines. One state can not demand that another state take internal action, which grants power to states but limits the power of international law (Steinberger, 1987, 414).
Duncan Hollis asserts that ‘the international legal order continues to lack universal, centralised, legislative and adjudicatory bodies that could definitively delineate the sources of law and judge their content.’ Hollis’ assertion has enduring relevance in the primary body for international law, the United Nations (2005, 144). The UN’s framework is limiting due to the inevitable domination of power states in the Security Council, the consensual mechanisms, and the inability to enforce compliance properly.
The Russian Federation is one of the dominating power states with a permanent seat in the UN Secu- rity Council. The extensive imposition of Russia’s sovereign actions in the world of international legal order speaks to the great extent of state sovereignty and spotlights the aforementioned limitations of the United Nations. From violating treaties through the invasion of Ukraine to extensive vetoing of Syria-related resolutions, Russia has ensured its own interests take precedence over global interests.
Limitations of International Law: The United Nations
Many governments consider the United Nations the primary institution of international law. Analysis of the UN’s actual functionality provides a deeper insight into the extent to which states are sovereign under international law and what limitations the UN’s structure presents in enforcing it.
The UN Charter set an objective to “establish conditions under which justice and respect for the ob- ligations arising from treaties and their sources of international law can be maintained” (UN, 2021). This international treaty functions as an instrument for the United Nations crucial role in upholding international law through courts, tribunals, multilateral treaties, and the Security Council. It is worth mentioning that outside of the UN, bilateral treaties, regional alliances, and technical agreements, such as the air traffic control system, also function as systems of international law.
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Madelyn Small
Consensual Mechanisms
When looking into the mechanism of consent within the United Nations, it becomes apparent that power ultimately rests at the will of the individual state.
State consent is the foundation of international law. A state’s legal obligations are primarily based on its consent to be bound through signing, ratifying or acceding to multilateral treaties. If a state finds its interests are not held in a change to international law, it can simply withhold its agreement. This notion protects sovereign equality but is a barrier to solving global problems and enforcing legal order.
The 1970 Nuclear Non-Proliferation Treaty (NPT) sought to prevent the spread of nuclear weapons and is one of the most universal treaties with 189 members (UN, 2022). While “near-universal” consent is highly successful, having non-participants is a major global threat in this case, and without consent, not much can be done to prevent some level of global proliferation risk. The four current non-members, India, Pakistan, Israel, and North Korea practised their sovereign will by refusing to sign the treaty and all acquired nuclear weapons (Ibid).
Evidently, international law does not control the state; the state controls international law and its effects.
Enforcing Compliance
The United Nations is not an authority higher than the state, which becomes a challenge when attempting to enforce compliance. This caveat also protects the sovereign will of each state.
A state’s consent does not eliminate the state’s incentive to violate the law or retract from a treaty. The NPT initially achieved consent from both North Korea and Iran. However, in 2003, North Korea withdrew from the treaty entirely, and Iran, a current member, has continuously developed its nuclear capabilities (Pollack, 2003). In both cases, the agreement ultimately failed to prevent the pursuit of nuclear weapons. The interests of each individual state, in this case, North Korea and Iran, took precedence over the international legal treaty they had signed.
In response to non-compliance, the United Nations Member States can agree to impose sanctions or break diplomatic ties, but state sovereignty can also present a barrier. In response to Iran’s non-compliance with the NPT, both the UN and other nations, such as the United States, imposed extensive sanctions. In 2015, an agreement was signed restricting Iran’s nuclear program in exchange for sanction relief. Due to its own national interests, the United States withdrew in 2018. Iran responded by boosting uranium enrichment again, a threat to the world and legal order system (Robinson, 2021). Despite years of sanctions, Iran continues to violate the terms of the NPT.
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To What Extent Does International Law Reflect the Sovereign Will of States? Domination of Powers
International law’s interpretation and implementation substantially vary based on differing national and cultural accounts of its legal purpose and content. Despite varied impressions, national under- standings in Western countries extensively influenced the development of international law (Remler, 2020). Academic and professional institutions are also frequently based in the West, with many other states, like China, sending high numbers of nationals to study law there (Ibid.).
‘Westernizers’ introduced the study of international law to most nations, including Russia, in the nineteenth century, emphasising commonality with their contemporary European schools of thought (Ibid.). Due to their domination in creating international law principles, the sovereignty and interest of Western states are more protected.
Another area of power domination that limits the sovereignty of states is the UN’s Security Council structure. Five permanent seats, held by China, the US, France, Russia, and the UK, have the power to veto UN decisions, allowing them to protect their nation’s best interests. This system disregards 188 other nations, each with its own sovereign will. These less powerful nations are often used as instruments of great power diplomacy and do not have their own agendas. The response to breaches in international law is very often determined by these great powers, allowing them to protect them- selves and their allies from consequences. For example, the United States has vetoed at least four UN resolutions condemning Israel’s settlements on Palestinian land, which is considered illegal under international law (Newton, 2021). Thanks to the US’s veto power, its sovereign interests were protected, and its ally was safeguarded. With this in mind, the extent of sovereignty in the field of international law may vary depending on the nation’s principles and power status.
Russia: A Case Study
Arguably, the most basic form of sovereignty within international law is its own definition. Each state has different principles that result in differing interpretations of the word sovereignty. For example, the Russian Federation defines sovereignty and international law much differently than its counterparts. The state clearly distinguishes between UN-based “narrow” laws and “rules-based order”, which they believe enforces Western ideals (Remler, 2020). This enables Russia to reject principal commitments regarding democratic governance and human rights.
In a 2018 address, Russia’s Minister of Foreign Affairs, Sergey Lavrov, charged: “Today we can trace a tendency to substitute for international law, as we all know it, some kind of ‘rules-based order.’ That is what a series of our creative Western friends call it” (Lavrov, 2018). The Russian government insists that, like forms of governance, international law develops on cultural and civilisational bases, not universally. This mindset reiterates Russia’s maintenance and promotion of sovereign will within the field.
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Madelyn Small
Source: Reuters
The Alma-Ata Declaration of 1991 declared that post-dissolution of the USSR, states would recognise each other as sovereign and independent, pledging to respect “each other’s territorial integrity and the inviolability of the existing borders”. This Declaration included both Russia and Ukraine (1999). After the seizure of Crimea, Dmitry Medvedev, the Deputy Chairman of the Security Council of the Russian Federation, stated, “We do not have to guarantee anything to anyone because we never took on any commitments concerning this” (Russian Government, 2014). The Russian Chairman made a clear distinction between the laws the state felt bound to and the rules-based order they felt did not bind Russia. The state remains exceptionally sovereign, acting on its own will and ignoring international laws that do not align with its interests based on differing definitions.
With veto power in the UN Security Council, Russia can avoid proposed actions that oppose their political benefits, giving them even more sovereign power. Russia used this veto power thirteen times on proposed Syria resolutions - a significant economic interest, and has repeatedly vetoed all resolutions relating to Ukraine (Remler, 2020). Despite the general consensus that Russia’s invasion of Ukraine is a threat to international peace and security, Russia’s veto power protects the nation and showcases the limited ability of international law to restrict sovereignty.
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To What Extent Does International Law Reflect the Sovereign Will of States?
Concluding Remarks
Source: Amazon
The extent to which states are sovereign in our globalised world is an increasingly debated topic. Can states genuinely make their own decisions within our international system?
Regarding international law, it is apparent that a state’s sovereign will is prioritised to a great extent and is a fundamental political unit. The consent basis and the heavily debated enforcement mechanisms, or lack thereof, ensure the state’s best interests are held and gives nations freedom to act as they please, despite the United Nations’ best efforts.
Despite this, the United Nations and international law have been constructed to marginalise less powerful nations with the promotion of Western principles and dominating states in the Security Council. By analysing the observable disparities in international law, one can move beyond the debate surrounding the extent of sovereignty and instead place it within the context of global inequalities and historical trends.
In his book, Gleider Hernandez states, “We will witness the continued expansion of international law’s reach into new and emerging areas of common concern, wrought by climate change, technology, and continued processes of international and regional integration that are changing the nature of State-to-State relations” (2014). The study of international law and analysis of its strengths and limitations is vital to chart new avenues of cooperation equitably considering the forthcoming challenges we will face, as outlined by Hernandez.