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The Interplay Between Sovereignity and International Law Essay

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Updated: Jan 8th, 2022

International Law is based on the notion of the existence of distinct states, which are internationally recognized geopolitical entities with a shared language and culture. The states, on the other hand, derive their existence from the idea of sovereignty. While the concept of sovereignty may evolve alongside changing social-political contexts, there is nevertheless a basic understanding of what it entails. Sovereignty has been defined as “…the highest, final, and supreme political and legal authority (and power) within the territorially defined domain of a system of direct rule.” (Morris 2000, 5). This paper will discuss social, political, and economic contexts in which contravention of a country’s sovereignty is justified as relates to international law, the contrasting views to those justifications, and how such contraventions promote international order.

In a historical context, international laws gained prominence in the 20th century due to partly the two world wars, and the resultant hostilities between states after the end of the wars. The international laws were then formulated to ensure and maintain world peace preventing states from mutual destruction. Amongst the earliest international agreements or laws that resulted from the Second World War was the Atlantic Charter and the Marshall plan. The Atlantic charter spelled the guidelines of post war relations among states. The Marshall plan on the other hand was interested in the economic recovery of the Europe continent after the economic ruins of the Second World War. Both the Atlantic charter and Marshall Plans were spearheaded by the United States of America in a bid to secure its position in the emerging post war power plays. The international laws and bodies created in this period were primarily concerned with restoring world peace and rebuilding the ruined economies of various countries. The direct consequent of these laws were that countries were willing to compromise their own sovereignty and to become part of a group to ensure their own security. In that social political context, it was in the country’s national interests to belong to a group or a regional block to guarantee its own security.

In the modern times, globalization has brought in new challenges that make it impossible for countries to pursue isolationist social, political and economic policies. Such globalization challenges include international drug menace, international human trafficking, and terrorism among other issues, and mean that countries have to cooperate with their counterparts in confronting these challenges (Nagan & Hammer, 2003). It should be noted that in some cases, domestic laws and processes can only succeed by embracing the international law. Cooperation among states means that they share skills and resources in confronting mutual challenges. This in return ensures a higher chance of success in containing the challenges. This would imply that the countries have to cede some authority over their internal affairs so as to comply with neighbour states, regional blocks, continental efforts and global agreements in order to confront mutual challenges

On the political front imperialism and manifest destiny of the United States of America are some of the political views or alignments in the 19th century that would greatly undermine another country’s sovereignty. The backbone of both policies is the need to expand the existing territorial boundaries with the objective of economically empowering itself. The aggressor state was usually economically and militarily empowered than the victim states. In the modern times, states have fought over territorial boundaries especially where the land in question has some great economic potential. Case in point would include the Kenya Uganda conflict over Migingo Island. Migingo Island in Lake Victoria has abundant supply of fish. Modern day political dispensations and realities may bring in power rogue governments, which may at times discriminate against members of its own citizenry based on race, religion, ethnicity, and political affiliations among other factors. With the brutal disregard for human rights, the political actors and government officials may find themselves criminally liable under international law.

The international law provides an avenue for accountability for a state that abuses its “supreme political and legal authority” through its senior officials (Nagan & Hammer, 2003). In weak democracies, election disputes may quickly degenerate into civil wars and disrupted social political order. In the long term, this state of affair may have adverse effect of the neighbouring countries, regional geographical blocks and even the whole continent.

Kenya’s 2002 parliamentary and presidential elections resulted in stalemate in which there was no clear presidential victor. The Electoral Commission of Kenya (ECK) declared the incumbent president the presidential winner. The incumbent president was sworn into office at night by the country’s chief justice. This was immediately contested by the main opposition chief who had a majority of parliamentary members. The opposition chief felt that the Kenyan legal system wasn’t independent enough from the executive arm of government and as such it couldn’t act as the arbitrator of the election dispute.

The disputed election results led to violence along tribal lines in what is commonly referred to Post Election Violence (PEV) in the Kenyan media circles. Persons belonging to certain communities were evicted, murdered, their women raped and their properties plundered , if they resided or worked in geographical locations perceived to be strongholds of differing political ideologies. In a political environment in which the incoming president didn’t clearly have the majority mandate to rule, the country was quickly degenerating into civil war. In such context, the international community had to intervene to ensure that the political stability was retained. It took the intervention of the African Union, United Nations, a former United Nation’s Secretary General and the East Africa’s community leadership to broker a coalition government and restore stability and peace in the country.

With the coalition government in place in Kenya, it was seen prudent to investigate the perpetrators of the PEV and bear them accountable. Among those deemed to bear the greatest political responsibilities for the PEV include a serving Deputy Prime Minister and Head of Civil Service. Other’s include two suspended cabinet ministers, a radio presenter and a former head of police, currently a head of a state corporation; the general post office. The country was torn between opting for an international judicial mechanism or a local judicial mechanism in trying of the PEV suspects.

The supporters of a local judicial mechanism in trying PEV suspects argued that referring the case to an international court would undermine the country’s sovereignty. They argued that the country’s had its own competent judicial mechanism and as such was capable of trying the suspects on its own. One of the reforms to be undertaken under the coalition government peace deal was the Kenya Judicial reforms. The supporters of the local judicial mechanism wanted to use the PEV court cases as testimony to the international community on the reform of the same.

On the other hand the supporters of an international judicial process backed by the international community had strong points for their opinions. They argued that the Kenyan legal system wasn’t robust enough to try the cases. These arguments were based on the fact that two of the suspects were presidential hopefuls in the coming 2012 general elections. The two were deemed to hold considerable political clout that manipulate a local judicial mechanism or alternatively disfranchise the country further. It was also noted that two of the suspects also sat in the country’s security committee charged with the overall country’s security, including matters relating to PEV.

The country finally agreed to international mechanism through the International Criminal Court (ICC) at The Hague, Netherlands. In the context of the Kenyan scenario it can be seen that the international law provided an avenue for arbitration where the local judicial mechanism is not competent or is greatly manipulated by the ruling elite. It should also be noted that international community intervention in the country’s internal affairs restored political order and maintained the prevailing regional power balance.

While international laws and bodies have played a central role in maintaining order at the international stage, they have had a fair share of clash with the concept of sovereignty. There are cases in which states have found themselves at logger heads with the international community, in pursuant of policies in their national interests, either economically or militarily, that contravene the international law. Case in point include Iran’s attempt to generate atomic economic for its own economic and military use. The United Nations and International Atomic Energy Agency greatly limits a country’s generation and use of atomic energy. The idea that a country’s own military and economic use of atomic agency can regulated by an international body, even it is clearly in its national interest, clearly violates the concept of sovereignty. This is a case that illustrates a country not voluntarily ceding its sovereignty but being forced to by the international community. The United States of America have in the past threatened declaration of war against Iran in a bid to stop the development of the atomic energy. The logic behind the curtailment of the country’s sovereignty in this case is notion that the energy generation and use may fall into irresponsible hands hence greatly undermining the worlds’ security.

International order and power relations also affect a country’s sovereignty in relations to international law. It should be the United States of America has refused to ratify the Rome Statute that created the International Criminal Court (ICC) (Elsea, 2006). The United States of America by virtual of its unique position in the world affairs felt that ratifying the Rome statute would greatly expose its citizens to a higher level of accountability than citizens of other countries. This pursuit in the national interests of US clearly seems to over weigh the international obligations. However it raises the issue of fairness and competence of the court.

Conclusion

The coexistence between the international law and sovereignty is not an easy one and will definitely continue to be complex in the evolving social, political and economic contexts.

References

Elsea, J.K. (2006). U.S. Policy Regarding the International Criminal Court. Web.

Morris, C.W. (2000). The Very Idea of Popular Sovereignty: “We the People” Reconsidered. Web.

Nagan, W.P, & Hammer, C. (2003). The Changing Character of Sovereignty in International Law and International Relations. Web.

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IvyPanda. "The Interplay Between Sovereignity and International Law." January 8, 2022. https://ivypanda.com/essays/the-interplay-between-sovereignity-and-international-law/.

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IvyPanda. 2022. "The Interplay Between Sovereignity and International Law." January 8, 2022. https://ivypanda.com/essays/the-interplay-between-sovereignity-and-international-law/.

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IvyPanda. (2022) 'The Interplay Between Sovereignity and International Law'. 8 January.

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