Sovereignty and International Law: Westphalian Concept of State Sovereignty

Topics: International relations, International law, Sovereignty Pages: 10 (3028 words) Published: November 16, 2014
Sovereignty and International Law
MIYOSHI Masahiro
Professor Emeritus of International Law
Aichi University, Japan

Abstract
Despite occasional claims for a fade-out of the Westphalian concept of State sovereignty, the international community does in fact continue to depend on it.

The Marxist

doctrine once predicted the fate of the concept, but developing countries, while adopting Marxist teachings in their criticism of the traditional international legal institutions, have tended to reinforce their sense of sovereignty in their dealings with the established international order.

International law has developed through increased co-operation among sovereign States in recent years as, for example, in the European Union, but it allows the State to assert sovereignty in a variety of ways: persistent objection to the formation of a customary rule of international law; nuclear threat in a world of general prohibition of the use of force; and above all, the unchanged concept of territorial sovereignty.

The very notion of the State has these essential components: “(a) a permanent population, (b) a defined territory, (c) government, and (d) capacity to enter into relations with other States” (Montevideo Convention on Rights and Duties of States of 1933, Article 1).

This is evidenced in the actual state of the international community:

sovereign States generally refrain from interfering in the domestic affairs of the others. Whatever political regime and social institutions a State may have is a matter for it within its own territorial limits.

In so far as international boundaries exist as a matter of fact, they may be disputed between the States concerned, as history abundantly shows.

In the

foreseeable future, therefore, boundary disputes, especially maritime boundary disputes, could inevitably arise or emerge if and when natural resources are involved in the boundary areas. The IBRU will never lose its jobs.

1

I

Historical Roots of Sovereignty

To start with the history of the notion of sovereignty in international law, it is almost identical with the full-scale history of international law itself. 1

The Peace of

Westphalia that brought the Thirty Years’ War to an end in 1648 added a new chapter of State sovereignty to the modern history of international law.

Before the Thirty Years’

War, which was partly a religious war, the European world of Christendom was largely a diarchic one of pope and emperor. But as a result of its defeat, 2 the Holy Roman Empire was dissolved into hundreds of relatively independent authorities with more or less equal sovereignty over their populations and territories, which theoretically marked the birth of the modern nation-State system.

This meant the secular authorities taking

over the religious power in the political world of Europe, where a common European international public law or the “droit public de l’Europe” prevailed among the sovereign Christian European States.

State sovereignty gradually grew stronger thereafter.

During the 17th and 18th

centuries the principle of exclusive territorial jurisdiction was developed, eliminating the medieval medley of overlapping layers of jurisdiction in favour of linear territorial delimitations, for example, with regard to territorial waters, for which a three-mile zone was seen as a minimum standard. 3

Thus State sovereignty meant a State’s

independence from and legal impermeability in relation to foreign powers on the one hand and the State’s exclusive jurisdiction and supremacy over its territory and

1

Steinberger, Helmut, “Sovereignty”, in Bernhardt, R. (ed.), Encyclopedia of Public International Law, Vol. IV (Amsterdam, etc.: Elsvier, 2000), at 501.
2

The Peace of Westpahlia also meant the defeat of the Catholic authority as it provided for a juxtaposition of Catholics and Lutheran-Calvinist protestants. When Pope Innocent X, by the bull Zelo domus Dei, declared the...
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