Jason Riegert, Government Law Review member
“International law is based on the concept of the state.” In turn, the state is based upon the foundation of sovereignty, which is defined as “supreme power especially over a body politic; freedom from external control.” The idea of state sovereignty dates back as far as the notion of the state itself. However, the development of international law has slowly weakened the idea of state sovereignty, causing a tension between international law and state sovereignty. This juxtaposition has developed because while the preservation of peace and state sovereignty was the original concern that led countries to form international law, international law itself has now become a threat to state sovereignty.
In Thomas Franck’s article entitled, The Emerging Right to Democratic Governance, he discusses certain normative expectations within the international community. Franck outlines four indicators, “pedigree, determinacy, coherence and adherence,” that a new state must have in order to gain international legitimacy and recognition. In Franck’s analysis, he gives examples of different states and their struggle to gain legitimacy. One example he gives occurred in the early 1990’s, when the United Nations (UN) came in and controversially monitored elections in Haiti. The article emphasizes the idea that not only do states legitimize international law, but that the international body legitimizes states. This poses the question of how sovereign are these new “legitimate” states. These states are being forced to jump through hoops and meet these “indicators” in order to gain international legitimacy, but what happened to the idea of “absolute power over a body politic,” and “freedom from external control.”
Another example of the struggle between state sovereignty and international law can be seen with Iran nuclear testing. In analyzing the Iran nuclear testing issue, it becomes clear that there are obvious limitations to what a state can and cannot do, thus limiting the state’s sovereignty. International organizations like the International Atomic Energy Agency (IAEA), work with the United Nations (UN) to help “promote the peaceful use of atomic energy.” In their promotion of peaceful atomic energy, the UN and IAEA restrict countries’ uses of atomic energy, seriously limiting what is allowable. In response to Iran’s admission of nuclear testing back on September 29, 2009, the IAEA Director General issued a statement in which he declared that there is a “need to move from national to multinational control of the nuclear fuel cycle.” There were agreements by the IAEA and Iran to have the agency come in and inspect the nuclear testing facilities. This raises the issue of what ever happened to the UN charter? The charter outlines the rights of states, recognizing state sovereignty and independence and declaring that the UN may not intervene in matters “essentially within the domestic jurisdiction of any state.” Don’t the IAEA’s polices directly violate the UN charter itself?
The problem is that there is considerable overlap between international and domestic law, and the concept of “domestic jurisdiction” is not absolute. As Harold Koh addresses in his article; Transnational Public Law Litigation, domestic and international law overlap and come together in a way that allows domestic courts to interpret international law. Koh discusses how when one country recognizes another, (i.e. international law) that it does not merely bestow horizontal rights on the other state, but that it also “grants rights vertically to individuals.” What Koh argues is that states are capable of interpreting international law through their own domestic courts, because the two systems are so intertwined. The problem with this is that if one state is making a decision on an international law or policy, it is going to have an effect on other states, even if their decision is to “not make a decision.” This just furthers the taking away of sovereignty from the states. The flip side to this argument is Lea Brilmayer’s argument, that domestic courts should not be interpreting international law because of comity, separation of powers and judicial incompetence. This “dualist” argument still has a negative effect on state sovereignty because it takes away a state’s ability to interpret the international laws which they have to abide by.
International law has expanded from its original origins of issues relating to the territory and jurisdiction of states. It now includes issues of; human rights, economics, environmental despoliation, labor standards, and communication controls. With international law comes an implied duty “not to intervene in the internal affairs of other sovereign states.” An exception to this duty is made for issues related to human rights and racial oppression, which are not considered to fall within the “closed category of domestic jurisdiction.” This is because there is considered to be a “‘moral right to intervene whenever human rights are violated.’” These “rights of the people” may be protections provided by international law, but in practice they are not so much rights of protection from other states, as they are protection from one’s own state. While this proves that not all restrictions on state sovereignty are bad, it also shows yet another limitation being put on state’s sovereignty. However, states still maintain significant sovereignty because they are the ones that are creating these international laws. The states’ ability to make declarations and reservations when signing treaties, also gives them deference over their ability to control the way in which they enforce the international laws that they sign.
In conclusion, while international law can be helpful in many ways, it is dangerous because it comes with the price of limiting state sovereignty. Third world and developing countries appear most at risk because they have the least influence in the international arena. The more powerful countries, (such as those on the UN Security Council), are the ones running the show. Therefore, international law is less of a threat to them and more of a tool which they can utilize to strengthen their state. Also, with diminished state sovereignty, comes less accountability, because the international legal system does not have elected officials and is not as close to the people. Lastly, there is the slippery slope argument, that slowly, more and more powers are being taken from the states and at what point does it stop.
 Malcolm Shaw, International Law 487 (Cambridge University, Sixth Ed.) (2008).
 Id. at 487; Webster’s Dictionary, available at http://www.learnersdictionary.net/dictionary/sovereignty.
 Shaw, supra note 1, at 13-14.
 Id. at 44.
 Thomas Franck, The Emerging Right to Democratic Governance, 86 Am. J. Int’l L. 46, 46 (Jan. 1992), available at http://www.asil.org/files/EmergingRighttoDemocratic.pdf.
 Id. at 51.
 Id. at 72.
 Franck, supra note 5, at 72.
 Id. at 46.
 Webster’s Dictionary, supra note 2.
 Dr. Mohamed ElBaradei, Statement at International Conference on Peaceful Uses of Atomic Energy (Sept. 29, 2009), available at http://www.iaea.org/NewsCenter/Statements/2009/ebsp2009n014.html; Enclyclopedia.com, International Atomic Energy Agency, http://www.encyclopedia.com/topic/International_Atomic_Energy_Agency.aspx (last visited Mar. 30, 2010).
 Dr. Mohamed ElBaradei, Statement to the Sixty-Fourth Regular Session of the United Nations General Assembly (Nov. 2, 2009), available at http://www.iaea.org/NewsCenter/Statements/2009/ebsp2009n017.html#npt.
 ElBaradei, supra note 11.
 Shaw, supra note 1, at 1205.
 Id. at 1205.
 Harold Koh, Transnational Public Law Litigation, 100 Yale L.J. 2347, 2348 (1991).
 Id. at 2378.
 Id. at 2397.
 Id. at 2395.
 Id. at 2357.
 Id. at 2375.
 Shaw, supra note 1, at 48.
 Id. at 212.
 Id. at 213.
 James Crawford, The Rights of Peoples: “Peoples” or Governments”? 9 Bull. Austl. Soc. Leg. Phil. 136, 136 (1985).
 Shaw, supra note 1, at 913-25.
 See Koh, supra note 16, at 2392-93.