Internationalism and the State

The adherents of the traditional concept of sovereignty maintain that legally, international law and treaty obligations do not constitute legal limitations on the state’s sovereignty. This is primarily due to the fact that they are at most, self-restricted as ‘voluntary assent of the state is necessary to their binding validity and that assent once given can be withdrawn.’⁸⁷ We can find examples of this in the approval or ratification procedure of nations. For example, in USA an international treaty or agreement to be effective and binding has to be ratified by the Senate. Similarly, approval of the Parliament is required for a treaty or agreement to be effective in India. As such, application of international law and treaty obligations can be considered as an extension of sovereign power of the states.

However, advocates of international law feel that in practice, universally recognized principle of international responsibility and international intercourse do not give much room for volition. We generally see that in today’s world, nation’s ability to stay away from forces of international law is really limited. Take, for example, the obligations under the World Trade Organization or the nuclear non-proliferation regimes. Notwithstanding participation of the nations in their negotiation and subjection of these treaties and obligations to their respective ratification, it is really doubtful whether nations could escape the force of these obligations without either being internationally sidelined or faced with economic or political sanctions.

We have seen previously, how Krabbe, Laski and Angell considered international law and internationalism as a factor limiting the state sovereignty.

Laski examines the logical outcome of the traditional theory of sovereignty, which may not regard international law in the same way as the national law is regarded given the superiority of the national law as command of the sovereign. Laski says ‘if … legal imperatives of the state are to be supreme, no other imperatives can be, logically, superior to them.’⁸⁸ He further adds that international law then can be valid only to the extent that the given state is willing to accept its substance. As such, international law in itself has no binding force and will become a law in a particular state through recognition as such by a given state.

Laski proceeds to refute these assumptions of the traditional theory of sovereignty on the following lines:⁸⁹

• International customs, treaties and arbitration agreements have given rise to a body of well-settled principles which, in the normal intercourse of the states, limit their activities in the same way as their national law does to its citizens.
• When a new state comes into being, it finds these settled principles as binding upon itself as though it were responsible for their creation.
• Scientific and economic changes in contemporary times make it impossible to leave the individual state free to make its own decisions in matters of common world concerns; unfettered discretion leads to war and is ‘fatal to the peace of other states’.
• As the will of the State secured primacy over all other associations within its territory, so has it become a political necessity to secure primacy of a common will within the society of states over the will of any given state. In other words, as individual will is subject to the system of legal imperatives laid down by the state, the will of the State must be subject to an overriding will in matters of common world concern.
• ‘Municipal law should be legally subordinate to international law.’ This is because demand by individual states for unfettered discretion is as impossible of acceptance as demand by the individual citizen for legal right to an unlimited will.
• The fact that states break international law should not diminish the importance of the latter as municipal law is also violated by individual citizens.
• The argument that the society of states has not yet evolved satisfactory organs in the legislative spheres for the development of international law cannot vitiate its necessity. The creation of the League of Nations (and latter of the United Nations) presents a record of conflict between the new principle of ‘international interdependence and its consequences, and the old principle of sovereignty’.
• ‘Unlimited and irresponsible state is incompatible with the interests of humanity’⁹⁰ and the ‘sovereignty of the state in the world to which we belong is as obsolete as the sovereignty of the Roman Church three hundred years ago.’⁹¹