The Irony of International Law; How International Law Limits State Sovereignty

Jason Riegert, Government Law Review member

            “International law is based on the concept of the state.”[1]  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.”[2]  The idea of state sovereignty dates back as far as the notion of the state itself.[3]  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.[4]

            In Thomas Franck’s article entitled, The Emerging Right to Democratic Governance, he discusses certain normative expectations within the international community.[5]  Franck outlines four indicators, “pedigree, determinacy, coherence and adherence,” that a new state must have in order to gain international legitimacy and recognition.[6]  In Franck’s analysis, he gives examples of different states and their struggle to gain legitimacy.[7]  One example he gives occurred in the early 1990’s, when the United Nations (UN) came in and controversially monitored elections in Haiti.[8]  The article emphasizes the idea that not only do states legitimize international law, but that the international body legitimizes states.[9]  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.”[10]   

            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.”[11]  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.”[12]  There were agreements by the IAEA and Iran to have the agency come in and inspect the nuclear testing facilities.[13]  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.”[14]  Don’t the IAEA’s polices directly violate the UN charter itself? 

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