Question:To what extent do the limitations imposed by international law on state sovereignty impact the exercise of national autonomy and decision-making processes?Please answer the question in a 2-3...

Question:


To what extent do the limitations imposed by international law on state sovereignty impact the exercise of national autonomy and decision-making processes?









Sovereignty: The State, the Individual, and the International Legal System in the Twenty First Century Pittsburgh University School of Law Pittsburgh University School of Law Scholarship@PITT LAW Scholarship@PITT LAW Articles Faculty Publications 2002 Sovereignty: The State, the Individual, and the International Legal Sovereignty: The State, the Individual, and the International Legal System in the Twenty First Century System in the Twenty First Century Ronald A. Brand University of Pittsburgh School of Law, [email protected] Follow this and additional works at: https://scholarship.law.pitt.edu/fac_articles Part of the Comparative and Foreign Law Commons, International Law Commons, Law and Politics Commons, Law and Society Commons, Legal History Commons, and the Other Law Commons Recommended Citation Recommended Citation Ronald A. Brand, Sovereignty: The State, the Individual, and the International Legal System in the Twenty First Century, 25 Hastings International and Comparative Law Review 279 (2002). Available at: https://scholarship.law.pitt.edu/fac_articles/39 This Article is brought to you for free and open access by the Faculty Publications at Scholarship@PITT LAW. It has been accepted for inclusion in Articles by an authorized administrator of Scholarship@PITT LAW. For more information, please contact [email protected], [email protected]. https://scholarship.law.pitt.edu/ https://scholarship.law.pitt.edu/fac_articles https://scholarship.law.pitt.edu/faculty_scholarship https://scholarship.law.pitt.edu/fac_articles?utm_source=scholarship.law.pitt.edu%2Ffac_articles%2F39&utm_medium=PDF&utm_campaign=PDFCoverPages http://network.bepress.com/hgg/discipline/836?utm_source=scholarship.law.pitt.edu%2Ffac_articles%2F39&utm_medium=PDF&utm_campaign=PDFCoverPages http://network.bepress.com/hgg/discipline/609?utm_source=scholarship.law.pitt.edu%2Ffac_articles%2F39&utm_medium=PDF&utm_campaign=PDFCoverPages http://network.bepress.com/hgg/discipline/867?utm_source=scholarship.law.pitt.edu%2Ffac_articles%2F39&utm_medium=PDF&utm_campaign=PDFCoverPages http://network.bepress.com/hgg/discipline/867?utm_source=scholarship.law.pitt.edu%2Ffac_articles%2F39&utm_medium=PDF&utm_campaign=PDFCoverPages http://network.bepress.com/hgg/discipline/853?utm_source=scholarship.law.pitt.edu%2Ffac_articles%2F39&utm_medium=PDF&utm_campaign=PDFCoverPages http://network.bepress.com/hgg/discipline/904?utm_source=scholarship.law.pitt.edu%2Ffac_articles%2F39&utm_medium=PDF&utm_campaign=PDFCoverPages http://network.bepress.com/hgg/discipline/621?utm_source=scholarship.law.pitt.edu%2Ffac_articles%2F39&utm_medium=PDF&utm_campaign=PDFCoverPages https://scholarship.law.pitt.edu/fac_articles/39?utm_source=scholarship.law.pitt.edu%2Ffac_articles%2F39&utm_medium=PDF&utm_campaign=PDFCoverPages mailto:[email protected],%[email protected] Sovereignty: The State, the Individual, and the International Legal System in the Twenty First Century BY RONALD A. BRAND* Sovereignty denotes independence. A sovereign state is one that acknowledges no superior power over its own government.' The word sovereignty is ambiguous .... We propose to waste no time in chasing shadows, and will therefore discard the word entirely. [P]olitical philosophy must eliminate Sovereignty both as a word 3and as a concept .... Away with the "S" word! 4 Introduction The concept of sovereignty has come to mean different things to different persons. The inextricable link between sovereignty and international law means that the existing multiple definitions of sovereignty affect both the role of the state and the rights of the individual in international law. Conversely, developments in international law necessarily require the reassessment of our * Professor of Law and Director, Center for International Legal Education, University of Pittsburgh. The material in this essay builds on earlier work of the author found at Ronald A. Brand, External Sovereignty and International Law, 18 FORDHAM INT'L L.J. 1685 (1995). Excellent research assistance was provided by Scott Jablonski. 'JEREMY RABKIN, WHY SOVEREIGNTY MATTERS 2 (1998). 2 ROLAND R. FOULKE, A TREATISE ON INTERNATIONAL LAW 69 (1920). 3Jacques Maritain, The Concept of Sovereignty, 44 AM. POL. SCI. REv. 343, 343 (1950). 4Louis Henkin, Notes from the President, AM. SOC'Y INT'L L. NEWSL. (ASIL, Washington, D.C.), Mar. 1993, at 1. Hastings Int'l & Comp. L. Rev. understanding of sovereignty and the definitions we apply to that term. In its origins, the concept of sovereignty dealt with the relationship between the individual and the "sovereign." Its application to the role of the state in international law developed as a secondary matter, bringing with it discussions of relationships between "sovereign" states. In the twenty-first century, it is time to return to the concept's original focus on the individual. The development of international law in this century is likely to be framed and judged not so much by the way international law defines relationships between states as by the way it deals with relationships between persons and states. The thesis of this essay is that an understanding of original concepts of sovereignty both helps explain twentieth century developments in international law and provides a proper context for coming changes in the ways in which persons relate to states, states relate to states within the international legal system, and ultimately- and most importantly-the way international law affects and applies to persons. A corollary to this need to properly understand concepts of sovereignty is the belief that the most important developments in international law in the new century will not be in state-state relationships but rather in the status and rights of the person in international law. In the twentieth century, the process of globalization in many ways brought us back to the importance of the individual in determining both what sovereignty is and its proper exercise by those acting on behalf of states. In this essay, I propose first to review the original meaning of the term "sovereignty." I will then provide examples of twentieth century developments in the application of international law to individuals and the application of municipal law to states. These examples demonstrate that international law has moved beyond contemporary notions of sovereignty, that concerns about "giving up sovereignty" through participation in multilateral organizations often are misplaced, and that the ultimate propriety of new international norms will in many cases be determined by the manner in which they deal with relationships between individuals and the state-which is the relationship addressed by the original concept of sovereignty. 1L Original Concepts of Sovereignty Sovereignty is a concept of Western political and philosophical [Vol. 25:279 2002] Sovereignty: The State, the Individual, and the International Legal System 281 thought. While one may question whether in today's world it is appropriate to consider such a concept without recognition of the influence of other parts of the world, it is nonetheless a fact that international law as we know it is also a product of Western thought. Thus, when we discuss sovereignty, and when we discuss international law, we begin with an inherent connection to Western philosophies and the development of Western culture, even though today no single culture or group of cultures can be considered without attention to the broader global context. In the middle ages, Western concepts of sovereignty had no relationship to territory. Humanity found its "oneness" not in human rulers or the geographic reaches of their power but rather in the Respublica Christiana, the pervasive unity of God (jus divinum), "Sovereignty, in the sense of an ultimate territorial organ which knows no superior, was to the middle ages an unthinkable thing."6 The sovereignty of God (in the Western context of the Christian- Roman Catholic-faith) took earthly form in the person of the Pope. Thus it could be said that "[jnfallibility in the spiritual order and sovereignty in the temporal order are two perfectly synonymous words."' The concept of a singular Respublica Christiana was destroyed by the Reformation and replaced by the notion of state supremacy, in which the sovereign "ceases to think of superiority as existent outside itself."' Jean Bodin, the "father of the modern theory of 5HAROLD J. LASKI, THE FOUNDATIONS OF SOVEREIGNTY AND OTHER ESSAYS 2 (1921). See also Helmut Steinberger, Sovereignty, in 10 ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW 397, 398-400 (1987) (discussing Universitas Christiana). 6LASKI, supra note 5, at 1. 7 BRIAN TIERNEY, ORIGINS OF PAPAL INFALLIBILITY 1 (1972) (translation of quotation from JOSEPH DE MAISTRE, DU PAPE 27 (1817) ("L'infaillibilitg dans l'ordre spirituel et la souverainetg dans l'ordre temporel, sont deux mots parfaitement synonymes.")). Tierney goes on to contest this statement by de Maistre: The words "infallibility" and "sovereignty" do not have the same meaning. It would be more true to suggest that the ideas they express are intrinsically incompatible with one another. It is of the essence of sovereignty (as the concept was understood both in the nineteenth century and in the Middle Ages) that a sovereign ruler cannot be bound by the acts of his predecessors. It is of the essence of infallibility (as the doctrine was formulated at Vatican Council I) that the infallible decrees of one pope are binding on all his successors since they are, by definition irreformable. Id. at 2. Tierney then goes on to discuss the problems that subsequent Popes had in dealing with the "infallible" pronouncements of their predecessors. 8LASKI, supra note 5, at 12. Hastings Int'l & Comp. L. Rev. sovereignty," 9 wrote that "Majestie or Soveraigntie is the most high, absolute, and perprtual power over the citisens and subjects in a Commonweale."'' But for Bodin, the sovereignty of the king over his subjects remained submissive to "the law of God and nature."" "Bodin's sovereign was subject only to Natural Law, and to no human law whatsoever, as distinct from Natural Law, and that [was] the core of political absolutism."'2 Thus, notions of sovereignty incorporated concepts of abstract moral rights that placed limits on sovereign power. In later theory, the sovereignty of the king became absolute, and this sovereignty became equated with the sovereignty of the state. 3 this transition, however, did not always provide perfect parallelism of thought. While in the Respublica Christiana there had been room for only one universal power, the territorial concept of kings and states required compartmentalization of sovereignty. Sovereignty existed within a given territory and resulted in the need to express the concept of multiple sovereigns, which was intellectually inconsistent with the sacred origins of the term. While the word "sovereign" had at times been employed to mean "any official endowed with superior authority,"'4 the king's right to supreme power, unlimited by any other earthly authority, took hold: [T]he idea prevailed that the king as a person possessed a natural and inalienable right to rule his subjects from above. Once the 9Maritain, supra note 3, at 344. '"1d. at 345 n.13 (translation of quotation from JEAN BODIN, DE LA RI PUBLIQUE Bk. 1, ch. 8 (Richard Knolles trans., London, Impensis G. Bishop 1606) (1583)). Bodin was born in 1530 and died in 1596. "Id. at 344 (translation of quotation from BODIN, supra note 10, at Bk. 1, ch. 8). "Id. at 344 n.lla. Bodin remained to some extent tributary to the Middle Ages, and did not go the full distance of the road later traversed by Hobbes and Austin. But if he made the Sovereign bound to respect the jus gentium and the constitutional law of monarchy (leges imperii), this was because (when it came to such things as the inviolability of private property, or the precepts of jus gentium, or the "laws of the realm" such as the Salic law, expressing the basic agreement in which the power of the Prince originates) human laws and tribunals were only enforcing Natural Law itself, so that, as a result, their pronouncements were valid even with regard to the Sovereign. Id. "3"The concept of Sovereignty took definite form at the moment when absolute monarchy was budding in Europe. No corresponding notion had been used in the Middle Ages with regard to political authority." Id. at 348. 4Id. at 348 n.29. [Vol. 25:279 2002] Sovereignty: The State, the Individual, and the International Legal System 283 people had agreed upon the fundamental law of the kingdom, and given the king and his descendants power over them, they were deprived of any right to govern themselves, and the natural right to govern the body politic resided henceforth in full only in the person of the king. Thus the king had a right of supreme power which was natural and inalienable .... The king, originally as the vicar of God, was not only the highest earthly power, but also above the highest power, existing separately from the body politic. The idea that states inherited this notion of sovereignty that existed between the divine king and his subjects took form in the work of Hobbes, who wrote of "he that carryeth this Person, [who] is called Soveraigne, and said to have Soveraigne Power: and every one besides, his Subject."16 Hobbes saw the sovereign king as the means by which society escapes from the "miserable condition of war" that otherwise results from each person's focus on getting as large a share of scarce resources as possible while preventing others from doing so. 17 Thus citizens enter a mutual covenant to confer upon the sovereign "all our power and strength," and "submit [our] wills, every one to his will and [our] judgments, to his judgments," so that "he may use the strength and means of [us] all as he shall think expedient, for [our] peace and common defence."'8 The sovereign's role in international relations was a natural extension of this arrangement for peace and security at home. The sovereign must: be Judge both of the meanes of Peace and Defence, and also of the hindrances, and disturbances of the same; and.., do whatsoever he shall think necessary to be done, both before-hand, (for preserving of peace and security, by prevention of Discord at home, and Hostility from abroad); and, when Peace and Security are lost, for the recovery of the same.'9 Thus, the sovereign's role is to provide security through peace and common defense. It has become routine to hear of the "sovereignty of states," but this clearly is a comparatively recent development in the use of a term SId. at 348. "6THOMAS HOBBES, LEVIATHAN, Pt. II, ch. xvii, [14]. Hobbes was born in 1588 and died in 1679, publishing Leviathan in 1651. '71d. at Pt. II, ch. xvii, T [1]. "Id