Changing Views on State Sovereignty and Related Problems

Abstract

International law is based on sovereign states as its subjects; sovereignty is the most fundamental principle of international law. Ever since the classic works of Grotius, the concept of sovereignty has long been established in traditional international law in the West. Although bourgeois international jurists had concocted a distinction between so-called "semisovereign" or partially sovereign states and sovereign states, to suit the aggressive policy of imperialism, yet not until the beginning of the 20th century did anyone basically deny or attempt to change this concept on the basis of international legal theory. The new trend may be said to have emerged since World War I. At first, a few continental international jurists in Europe, applying to international relations the theory of social solidarity advocated by Duguit, the celebrated French scholar on public international law, attacked the concept of sovereignty and held it incompatible with international law. In particular, Professor Politis, of the University of Paris, in his book New Aspects of International Law, made an all -out attack on the sovereignty concept in international law, invoking the theory of social solidarity. (17) He said that during the past three generations, the concept of sovereignty had dominated the theory of international law. This implied that the state had an absolute and unquestionable power to take actions in foreign relations according to its own will, subject to no restrictions not accepted by it. But, following the development of international law, the state's freedom of action was increasingly limited. This phenomenon became increasingly difficult to explain, because if the will of the state was truly sovereign, then it could not be restricted by compulsory rules. Consequently, a dilemma emerged: either the concept of sovereignty had to be abandoned, or the restrictive character of international law had to be negated. Because it was impossible to resolve this dilemma, the alternative was to deny the existence of absolute sovereignty and to recognize only a relative and limited sovereignty, subject to obligations under international law. However, this concession has not saved the principle of sovereignty, but only accelerated its decline. In fact, to recognize that sovereignty can be diminished is to concede that it does not exist, because true to its definition, the concept of sovereignty excludes any limitations. As has been correctly pointed out, limited independence is no independence. One cannot but realize the need to abandon completely the concept of sovereignty and to face the fact squarely. This revision had begun long before 1914, but it became more urgent and necessary as a result of World War I. The war poignantly drove home to the states their interdependence; and it demonstrated that in order to eliminate international anarchy, states must accept the restrictions of law and the maxim that no state can impose its will on others. They must all regard law as supreme and equally submit to its rule. If we face the facts, sovereignty aside, we will realize that the so-called "independence" of the state implies only that the state has freedom of action within the scope of law; this is only a kind of special jurisdiction enjoyed by the government and is based upon international law. The more developed international relations become, the more limited will be the freedom of the state. Each step toward solidarity symbolizes some new limitations to state freedom.