International Law 5

State Sovereignty, Domestic

Jurisdiction, and Responsibility

Concept of sovereignty ( Genesis, definition and

ideological framework of sovereignty)
Jean Bodin was the pioneer in originating sovereignty in his
1755 publication, De La Republique , as an absolute,
indivisible, perpetual and supreme authority that could not be
permeated or violated, except by divine authority.
The French absolutism in the 15th century , influenced this idea
of sovereignty.
John Austin and Thomas Hobbes maintained that sovereignty
is an unlimited power of single royal authority over feudal
princes, implied Unquestionable supremacy, even over
divinity, to achieve social order.

To be continued
In the middle ages when there were few sovereign entities it
was regarded as political reality without much debate. This
premise formed conceptual foundation of the doctrine of
sovereignty which emerged with the advent of new territorial
states in 16th century.
Thus sovereignty was meant to create centralised power
exercised in law-making and enforcement within a given
territorial state.
The Westphalia Peace Treaty 1648 further consolidated the
ideological framework of territorial sovereignty as the highest
authority, and the prerequisite for the principle of sovereign
equality of states.

To be continued
The manifestation of sovereignty include:
a. sovereign equality
b. political independence
c. territorial integrity and political unity
d. Exclusive jurisdiction over a defined territory
f . Freedom for external intervention ( a duty of nonintervention )
g. Freedom to choose and pursue political , economic, social
and cultural systems.
h. Dependence on obligations arising from international law
and treaties based on the consent of states .

Positivist view
- State sovereignty is the supreme authority and there is
nothing over and above it.
- It is a right and competence of the state which is not limited to
any extra-territorial or supra-national authority.
State sovereignty has two dimensions; internal and external.
- internal sovereignty refers to the absolute governing authority
of the state of all people and components that are within the
authority.

Positivists view of Absolute Sovereignty

- External sovereignty refers to the competence of the state and
political authority to represent the state at international plane
on international legal and political discourses free from any
kind of international interference.
Sovereignty suggests that state is the supreme authority in its
own affairs or master of its own affairs whether it is external
or internal.
No state is under any obligation to tolerate others interference.
The argument is, there is no legally organised authority that operates over
and above the state which is mandated to deal with matters associated with
a state.

Whether absolute sovereignty is tenable in law or not ?

Every state is under obligation to respect the sovereignty of
another state and this mutual respect for each other sovereignty
or duty of reciprocity is a limitation to absolute sovereignty.
The sovereignty of a state can not be exercised in its absolute
form.
The Hormone doctrine of 1895 that established the absolute
territorial sovereignty of US over Mexico with respect to the
distribution of the water of an international river Rio-Grande
was subsequently negated by the US Supreme Court in
Missorie vs Holland case.

To be continued
Article 74 of the UN Charter that speaks of
principle of good neighbourliness indicates a
limit to the absolute sovereignty. It says that
mutual cooperation is indispensable for coexistence. The UN member states simply can
not do any thing within their jurisdictions that
can have exra-territorial impacts.

Continued.

The examples of extra-territorial impact can be taken from Judicial

Decisions:
(1)Trail Smelter Arbitration between Canada and US (1941)
The International Arbitral Tribunal held Canada responsible for extraterritorial damage caused by Trial Smelter. The order was that Canada must
amend or reform the operation of the plant so that it would not cause any
damage in the territory of US.
2. Nuclear Test Case ( 1973) between Australia and France : ICJ asked
France not to conduct nuclear testing in such a manner that is injurious to
Australia and New Zealand.
3. Corfu Channel Case ( 1949) between UK and Albania in relation to
negligence in international law : ICJ said, No state has got any right to
use its territorial sovereignty to the detriment of other country.

Continued.
It is alleged that the idea of international law constantly challenges the
validity of absolute sovereignty. This idea in the history created
imperialism, colonialism , authoritarian rule and wide spread violation of
human rights. In fact, international law does not challenges the validity of
sovereignty. It is not to reduce it, erode it and undermine it. It changes its
meaning and scope. It is international law that defines , redefines and
articulates sovereignty for the purpose of international law and relations.
Because sovereignty is the creation of international law for the effective
operation of the state. As per international law, sovereignty is a governing
right , not like a ownership of real estates. It is no longer a tool for
exclusion and isolation. It is a tool for international engagement.
Sovereignty is not meant for the violation of international law.

 Chapter 8 of UN Charter- Regional Political

Organizations to complement
the UN
objectives
Article 104 imposes obligations upon the
member states. It says that the organization
shall enjoy in the territory of its members such
legal capacity

Continued.
As may be necessary for the exercise of its functions and the fulfilment of its
purpose.
International financial and trade organizations such as World Bank, IMF
and WTO have developed supra-national structure that regulates the
monitory policies, development, fiscal ( IMF) and trading policies ( WTO)
of the member states. All these have depreciating effect on state
sovereignty.
Regional Free Trade Organizations such as EU, NAFTA, ASEAN intrude
into the national sovereignty through conducting free-trading decisionmaking.
Multinational corporations by providing foreign direct investment or
threatening to withdraw it constantly interferes with economic , even the
political sovereignty of the host states. They also influence the sovereign
social values and cultural identity through their market advertising policy

Continued.

Globalization is constantly impacting on the sovereign

authority and decision-making of the country with respect to
its national economy.
Globalised sovereignty militates against the governing
principle of UN Charter (sovereign equality).
Technology such as internet has brought about significant
limitation to sovereign state.
Cross-boarder criminal activity such as terrorism, money
laundering etc has brought limitation to state sovereignty in the
contemporary context.

Domestic Jurisdiction of a state

It is by-product of sovereignty or internal affaires of a state. In another
words, it is the manifestation of state sovereignty through its courts,
legislature and executive.
Its institutional legitimacy has come from Art.2 (7) of the UN Charter as it
says that UN is not authorized under this Charter to intervene in matters
which are essentially within the domestic jurisdiction of any state. It means
international interference is outlawed if it is essentially within the domestic
jurisdiction. The word essentially qualifies the domestic jurisdiction.
Therefore, if UN undertakes any enforcement measures under chapter VII
of the Charter on the ground of potential threat to the peace, imminent acts
of aggression, and the breach of peace, the defence of domestic jurisdiction
is invalid.

State Responsibility
State responsibility refers to the legal responsibility of a state
that arises from the violation of binding obligation under
international law. In another words, state responsibility occurs
when it violates international obligation owed to another state.
According to the Article 1 of the ILC Draft Articles, every
internationally wrongful act of a State entails the international
responsibility of that State. Article 2 of the ILC Draft says
there is an internationally wrongful act of a State when
conduct consisting of an action or omission (a) is attributable
to the State under international law; (b) constitutes a breach of
international obligation of the State.

To be continued
The obligation may be derived from a treaty or customary law
or may consist of non-fulfilment of a binding judicial decision.
The obligation may consist of aid or assistance in the
commission of an internationally wrongful act by another state
or even non-state entity.
Responsibility may occur when a state ill-treats the nationals
of another state or acts contrary to a legally binding decision of
a competent international organization, such as the Security
Council.

Nature of State Responsibility

The consequence of responsibility is a liability to make

reparation and /or suffers the consequences of being
internationally responsible.
In a report on the Spanish Zone of Morocco Claims Judge
Huber said : If the obligation in question is not met,
responsibility entails the duty to make reparation.
In the judgement of Chorzow Factory (1927) the PCIJ said
it is a principle of international law, and even a general
conception of law, that any breach of an engagement involves
an obligation to make reparation.

To be continued
In the Corfu Channel case, the ICJ held Albania liable
for the consequences of a mine-laying in her
territorial waters and the absence of a warning of the
danger.
There is a breach of an international obligation by a
State when an act of that State is not in conformity
with what is required of it by that obligation,
regardless of its origin or character.

Characteristics of State responsibility ( conduct of State

Organ )
The conduct of any State organ shall be considered an act of
that state under international law, whether the organ exercises
legislative, executive, judicial or any other functions, whatever
position it holds in the organization of the State, and whatever
its character as an organ of the central government or of a
territorial unit of the State. ( ILC Draft Art.4 {1}

 An organ includes any person or entity which has that status in

accordance with the internal law of the State. For example in
Rainbow Warrior case the UN Secretary-General found that
through its agents, France violated the sovereignty of NZ and
was bound to pay US$ in reparations. In Nicaragua case ICJ
found SIA of the US involved in training, arming, equipping,
and financing the Contra forces.

Acting in an official capacity

Even though a person or entity has the status of a

State organ, the State will be responsible only when
that person acts in an apparent official capacity. If
the person acts in a private capacity, just as a private
citizen, the State will not be responsible.

Conduct of persons or entities exercising elements of

governmental authority

Article 5, ILC Draft

The conduct of a person or entity which is not the organ of the state under
Art.4 but which is empowered by the law of that state to exercise elements
of the governmental authority shall be considered an act of the state under
international law, provided that the person or entity is acting in that
capacity in the particular instance.
In Yeager v Iran (1987) ICJ concluded that there was a presumption that
the Iran revolutionary guards were acting on behalf of the new government
or, at least, they exercised elements of governmental authority in operations
of which that government must have had knowledge and to which it did not
specially object.

Conduct of a person directed or controlled by a state

Article 8, The conduct of a person or group of persons shall
be considered an act of a State under international law if the
person or group of persons is in fact acting on the instruction
of, or under the direction or control of, that State in carrying
out the conduct.
International tribunals have adopted different approaches in
determining the meaning of direction or control. In Zafiro
Claim (US v Britain) 1925 the tribunal employed the word
due diligence to mean direction or control. In the Nicaragua
case, the court adopted a relatively stringent test of effective
control over the Contras if the US was to be responsible for
their acts.

Conduct adopted or acknowledged by a state as its own

Article 11 of ILC Draft : Conduct which is not attributable to

a State under the preceding articles shall nevertheless be
considered an act of that State under international law if and to
the extent that the State acknowledges and adopts the conduct
in question as its own. In Tehran Hostages Case ICJ held
Iran responsible for breaches of the Vienna Conventions on
Diplomatic Relations of 1961 and the Vienna Convention on
Consular Relations of 1963.

State shall be responsible for its own omission or

inaction ?
Failure to take reasonable care (due diligence) to prevent
private individuals from committing wrongful acts against
foreign nationals;
Failure to punish responsible individuals or to provide the
injured foreigner with the opportunity of obtain reparation
from the wrongdoers in the local courts. [Denial of justice].

Responsibility for assisting another state in an

internationally wrongful act
Article 16of ILC Draft : A state which aids or assists another
state in the commission of an internationally wrongful act by
the latter is internationally responsible for doing it if:
a) that state does so with knowledge of circumstances of
internationally wrongful act; and
b) that act would be internationally wrongful if committed by
that state.
For example: Certain Phosphate Lands in Nauru case (1992)

Direction and control exercised over the commission of

an internationally wrongful act
A state which directs and controls another state in the
commission of an internationally wrongful act by the latter is
internationally responsible for that act if:
a) that state does so with knowledge of the circumstances of
the internationally wrongful acts; and
b) the act would be internationally wrongful act if committed
by that state.

Defences

Consent ( Art. 20 of ILC)

Self-defence ( Art.21 of ILC)
Countermeasures ( Art.22 0f ILC)
Force majeure ( Art.23 of ILC)
Distress ( Art.24 of ILC)
Necessity (Art.25 of ILC)