CHAPTER 2 CONCEPTUAL AND THEORETICAL FRAMEWORK
2.4 The doctrine of State sovereignty
2.4.2 The historical origins and development of the doctrine of State
2.4.2.2 Limited State sovereignty
Over the past few decades, the international community has redefined the theory of sovereignty. The Westphalian notion of sovereignty, in which States were permitted to handle their internal affairs free from international interference, has largely been discarded.395 Various reasons in international law are at the root of these developments.
These are the recognition of the supremacy of international law over domestic law, the increasing awareness of the need for co-operation and inter-dependence between states, the adoption by States of treaties aimed at the protection of the rights of individuals and the integration of States in international or regional bodies such as the United Nations or the African Union, which have some supervisor powers over member States.
2.4.2.2.1 The supremacy of international law over national law
The first question which arose in connection with the doctrine of absolute State sovereignty was whether a sovereign State, with no authority above it, could be bound by international law.396 Legal writers defended the supremacy of international law over national law by applying a monistic397 view to the relationship between international law
they could appeal. Nor are individuals subject to international criminal liability since they are under the exclusive jurisdiction of the State on whose territory they live”.
394 Swanepoel The Emergence 225.
395 Trumbull 2007 Berkeley Journal of International Law 317.
396 Ferreira-Snyman State Sovereignty 46.
397 Monism is opposed to “dualism”. Dualism contends that international and domestic law are two distinct legal systems. According to dualist theorists, the subjects of international law are States, while the subjects of domestic law are individuals. In terms of this view, there is a fundamental difference between international law and domestic law. Accordingly, each system has competence within its own sphere and there ought to be no intrusion by one in the sphere of the other. If the national law incorporates international law into the legal system, it does so in terms of its domestic competence and not because international law imposes this obligation on it (Motala 1995 Comparative and International Law Journal of Southern Africa 342). The argument that international law is concerned only with the conduct of States is, however, not valid. Under modern international law, individuals have rights (for example the right not to be tortured which can be claimed against a State) as well as duties (for example, individuals can engage their individual responsibilities by committing some acts defined as crimes against in
and municipal law.398 They argued that a system of law is based on a Grundnorm or ground rule from which flows the validity of other statements of law in the system.399 They then argued that since in practice nations recognise the equality of each other’s legal orders, the doctrine of equality must mean that they recognise a Grundnorm (or basic norm) higher than the Grundnormen of their own legal orders which bestows that equality.400 From this perspective, international law is considered to be above national law and State sovereignty can be limited by proscriptions of international law from which it derives and to which it must, therefore, conform.
To sum up, under modern international law, although a State is still sovereign, its sovereignty is limited by the norms of international law. For example, under modern international law, it is acknowledged that where a rule of international law has evolved to the status of jus cogens (or a peremptory norm of international law), all States are bound to refrain from any actions prohibited by that peremptory norm.401 Furthermore, international law may impose positive obligations (as opposed to restrictions) on States.
For example, international law obliges States to either prosecute or extradite to another State which is willing to prosecute persons who are suspected of having committed international crimes who are present on their territories.402 This obligation (generally referred to as aut dedere aut judicare)403 contradicts the notion that a sovereign State is completely free to decide whether or not to prosecute a particular person.404 The implication of all of this is that part of States’ sovereignty has been eroded.405
2.4.2.2.2 The need for co-operation and inter-dependence
During the period between the First and Second World Wars, States increasingly became aware of the need for co-operation between themselves in order to achieve the
international law, for example genocide). For this reason, the monist approach to international law has gained more acceptance in legal literature (Motala 1995 Comparative and International Law Journal of Southern Africa 342).
398 See Ferreira-Snyman State Sovereignty 46-51 and the authorities cited therein.
399 Swarup Date unknown www.manupatra.com/roundup/330/Articles/Article%201.pdf
400 Ferreira-Snyman State Sovereignty 49, citing Kelsen Pure Theory of Law (translation by Max Knight in 1970).
401 Motala 1995 Comparative and International Law Journal of Southern Africa 344.
402 Sunga “Reconciling Truth Commissions and Criminal Prosecutions” 1095.
403 The aut dedere aut judicare principle is further discussed in 2.5.3 hereunder.
404 Sunga “Reconciling Truth Commissions and Criminal Prosecutions” 1095.
405 Ferreira-Snyman State Sovereignty 27.
advancement of common goals.406 This gave rise to an increasing awareness of the existence of an “international community” of States,407 in which sovereign nations are joined, not as competitors in the pursuit of self interests, but as interdependent components of a global community,408 and that, accordingly, all members of the international community must take into account the valid interests of the other members when exercising their sovereignty.409
2.4.2.2.3 The adoption of human rights treaties
At the end of WWII, the protection of the rights of the individual has become an important aspect of international relations.410 This shift led to the adoption of a number of various human rights instruments and the creation of supervisory human rights bodies which effectively limited the absolute powers of States over their citizens.411 For example, when all local remedies have been exhausted, victims of human rights violations are allowed to bring complaints against States to the UN Economic and Social Security Council.412
The above example highlights an instance where States have established limitations to their own sovereignties by accepting that an external institution can scrutinise what they are doing in regard to human rights.
2.4.2.2.4 The integration of States in supra-national or international bodies
States may also limit their sovereignty by creating and joining supranational organisations, such as the United Nations and the African Union, that have the authority to make decisions that are binding on member States.413 For example, in terms of article 25 of the UN Charter, the Security Council is empowered to decide to use military force against a member State when it determines that an internal situation in that State
406 Ferreira-Snyman 2006 Fundamina 48.
407 Ferreira-Snyman 2006 Fundamina 48.
408 Newton 2001 Military Law Review 27-28.
409 Ferreira-Snyman State Sovereignty 52.
410 Rakate The Duty to Prosecute and the Status of Amnesties 48.
411 Roht-Arriaza 1990 California Law Review 462: “Due to widespread revulsion for the crimes committed immediately before and during the Second World War, nations finally began to accept limits on their absolute sovereignty regarding the human rights of those residing within their jurisdictions”. See also Rakate The Duty to Prosecute and the Status of Amnesties 48.
412 The procedure for the ECOSOC’s dealings with communications relating to violations of human rights and fundamental freedoms is set out in the ECOSOC’s Resolution 1503-(XLVIII) of 27 May 1970.
413 Ferreira-Snyman State Sovereignty 246.
constitutes a “threat to the peace or breach to the peace”. For instance, in resolution 1973 of 17 March 2011 on Libya, deploring violations of human rights by the Ghaddafi regime and the use of force against civilians, the Security Council imposed a “no fly zone” over Libya and authorised States to take “all necessary measures” to protect civilians.414 This is a clear example of intrusion by the Security Council into the internal matters of a State. The situation in Libya did not pose any threat to the peace in any other State, yet the Security Council seized itself of the matter and decided on the measures to be taken in order to put an end to the human rights violations in that country.415
The Security Council’s involvement in conflicts that are essentially internal is further illustrated by the Security Council referral of the situation in Darfur, Sudan to the ICC.416 Sudan is not a member of the ICC, and therefore the ICC could not have jurisdiction over crimes committed in Sudan, by and against Sudanese citizens. However, in accordance with article the 13(b) of the Rome Statute (to which Sudan is not party), the Security Council used its power under Chapter 7 of the UN Charter to refer the atrocities in Darfur to the ICC.
Another example is the Constitutive Act of the African Union417 that limits the sovereignty of States by allowing intervention by the Union when there are large-scale violations of human rights which can be characterised as genocide, war crimes or crimes against humanity.418 This power of the AU to intervene in internal matters of Member States has even been expanded by the Protocol on Amendments to the Constitutive Act419 adopted in July 2003. In accordance with this Protocol (which is not yet into force), the AU will be allowed to intervene, in addition to the three situations of
414 UN SC Resolution 1973 of 17 March 2011 para 4: “Authorizes Member States that have notified the Secretary-General, acting nationally or through regional organizations or arrangements, and acting in cooperation with the Secretary-General, to take all necessary measures, notwithstanding paragraph 9 of resolution 1970 (2011), to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory, and requests the Member States concerned to inform the Secretary-General immediately of the measures they take pursuant to the authorization conferred by this paragraph which shall be immediately reported to the Security Council”.
415 Dugard International Law 484.
416 UN Security Council Resolution 1593 of 31 March 2005,
417 OAU Constitutive Act of the African Union OAU Doc CAB/LEG/23.15 (2001).
418 Art 4(h) and 4(j) Constitutive Act of the African Union. For an excellent and detailed discussion of this topic see Ferreira-Snyman State Sovereignty 247-255.
419 AU Protocol on Amendment to the Constitutive Act of the African Union (2003).
genocide, crimes against humanity and war crimes, in the case of a “serious threat to legitimate order to restore peace and stability to the Member State of the Union upon the recommendation of the Peace and Security Council”.420 If this amendment enters into force, the AU will have extensive intervention powers akin of those of the UN Security Council discussed above.421
It follows from the above that the idea of absolute sovereignty has become an outdated concept in modern international law.422 However, although no longer absolute, State sovereignty and the principle of non-intervention are not obsolete concepts but remain influential components of international law and, in fact, central to the UN system itself.
Article 2(1) of the UN Charter provides that the United Nations is based on the "principle of the sovereign equality of all its Members". The Charter thus recognises that the principle of State sovereignty remains one of the fundamentals of international law and international relations.423 By this, the Charter to some extent reaffirms the Westphalian principle that, under international law, all States, irrespective of their size or economy, should be treated as equal,424 and that any infringement or intrusion into the sovereignty of a State by another State is therefore strictly prohibited.425