Candidate Name: Anushe Khan Candidate Number: 0040

Centre Name: Lahore Grammar School Centre Number: PK816

GLOBAL PERSPECTIVES AND RESEARCH

MAY/JUNE 2019 (9239/02)

SHOULD INTERNATIONAL ORGANIZATIONS

HAVE THE AUTHORITY TO DICTATE LAWS TO
SOVEREIGN STATES?

ESSAY

CANDIDATE NAME: ANUSHE KHAN

CANDIDATE NUMBER: 0040

CENTRE NAME: LAHORE GRAMMAR SCHOOL

CENTRE NUMBER: PK816

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Candidate Name: Anushe Khan Candidate Number: 0040
Centre Name: Lahore Grammar School Centre Number: PK816

Most international organizations (IOs), legal or political, operate through

discussion over national and international issues and passing decisions regarding them.
In whatever form these take-resolutions, memorandums, or court rulings-they are in
different ways supposed to be fulfilled by the country/countries they involve.
Contrary to this is the concept of ‘state sovereignty’, which in the United
Nation’s definition guarantees nations “non-interference in the internal affairs of
states.” This is seen as a clash with IOs; that a state due to its sovereignty of
governance should not be subject to decisions or commitments agreed to by other
countries. The argument for sovereignty holds that when bound by international law,
the state’s right to govern itself independently is harmed. For clarity, this essay will
consider only formal intergovernmental organizations with at least some interregional
diverse membership.

State sovereignty theoretically is assessed to its absolute core in ‘International

Criminal Law vs. State Sovereignty,’ an article by Robert Cryer published in the
European Journal of International Law. Cryer is a Professor of Criminal and
International Law at Birmingham Law School, with sufficient expertise to provide
reasonable judgment on the topic. Both Cryer and the European Journal are fairly
objective, drawing his conclusions by assessing five established academic works on
international law- indicating reliability as a source.
This article depicts sovereignty as an “enemy” of criminal law enforcement by
IOs, specifically the International Criminal Court (ICC.) Labeled here as “the sibling
of realpolitik,” sovereignty is often viewed by international criminal lawyers as an
overly practical obstruction to moral justice. This Machiavellian image Cryer has built
however may be an oversimplified view of sovereignty as a concept, leaving little
room for any positive features. He could have considered, for example, its role as a
defense system for states. Cryer also mentions a thought dating back to the League of
Nations era on diplomacy, wherein the “new” idea of diplomacy focused on
multilateralism in the legal order. This was associated with cooperation and catering to
global interests. We can reasonably infer Cryer is asserting the importance of IOs
based on how they have historically been used for peace-loving diplomacy. He has,
however, fallen short in telling us whether or why multilateralism is the right road to
take in the first place. One flaw in his argument here is that he based it on the League
of Nations example without accounting for the obvious failure of the organization.
It is useful in remembering that IOs are based on legal commitments. Like the
North Atlantic Treaty of NATO; Article 4 dictates that in any instance of threat to
territorial integrity, members will act together, not independently. This exemplifies an
agreement to give greater importance to IOs they are part of at the expense of their
independent sovereignty. This particular example applies to nearly all regional bodies
including the European Union, African Union, the Arab League, and ASEAN among
others.

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Candidate Name: Anushe Khan Candidate Number: 0040
Centre Name: Lahore Grammar School Centre Number: PK816

Cryer goes on to negate the view that the ICC is by nature “supranational.1”
This could be on the grounds that its membership and recognition of the Rome Statute
of the ICC (just like any other IO) is dependent on the free will of a country. And by
past and current example we do see it isn’t only highly developed/powerful countries
opting out of IOs. Even countries such as Pakistan, Sudan, Syria, and Libya, and
Yemen among others exercised their independent will to not recognize or sign the
Rome Statute of the ICC and the International Court of Justice (ICJ.) It’s hard to blame
these bodies for being supranational when participation is a national choice. Cryer’s
biggest strength may be the balanced position he maintains in his perspective- by
concluding that sovereignty should be “limited” but cannot be superseded.

Another proponent of IOs is an article from the Indiana Law Journal: ‘International
Protection of Human Rights and State Sovereignty’ by Jost Delbrück. Despite this
article being fairly dated, its arguments are mainly theoretical and therefore still
relevant. The writer has served as Director of the Institute of International Law at the
University of Kiel as well as Member of the Permanent Court of Arbitration in the
Hague2; a renowned authority and scholar. He writes that national sovereignty is
outright detrimental to human rights. The argument of Delbruck is that allowing
sovereignty and nationalism to exist legally gives too much power to states, leaving
them free to violate international human rights laws in their domestic territories. This
argument certainly has viability given that states in different regions vary in culture
and social practice, and this deeply affects which human rights are prioritized and
which are dismissed.
A well-known example is Saudi Arabia exercising their sovereign right as they
publicly declare reservations (and therefore non-compliance) to several parts of the UN
Declaration of Human Rights including Articles on migrant workers, women’s rights,
torture, racial discrimination and refugees.3 It is on these grounds Delbruck deems
human rights protection and sovereignty to be mutually exclusive and simply
“incompatible.” Bias is likely here however, given Delbruck once served as member of
the Permanent Court of Arbitration, unsurprisingly making him an ally of IOs.

In stark contrast is a research paper of Southern Illinois University titled ‘Death

of State Sovereignty?’ Written by two assistant professors of criminal justice, Dr.
Dawn L. Rothe and Dr. Christopher W. Mullins, this stands opposed to international
law overruling national governments. This article connects the growth of IOs’
decision-making (naming the ICJ and the ECHR4) in recent decades as a “trend toward
state disempowerment.” Rothe and Mullins attribute the deterioration of sovereignty to
three major causes: global markets, transnational or multinational corporations, and the
emergence of [universal] human rights.

1 The idea that the ICC has power which transcends the national power/control of states
2 https://www.law.indiana.edu/about/people/bio.php?name=delbruck-jost
3 https://fanack.com/saudi-arabia/human-rights/
4 European Court of Human Rights

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Candidate Name: Anushe Khan Candidate Number: 0040
Centre Name: Lahore Grammar School Centre Number: PK816

Their view on human rights directly opposes the ideas presented by Delbruck in
the Indiana Law Journal. Instead, Rothe and Mullins imply that human rights are not
(or more accurately, should not be) matters shaped by international law at all. They are
instead an “internal matter” rightfully dealt with individually by states according to
their culture and custom. They argue that due to the growing power of the Universal
Declaration of Human Rights and ECHR, “a state’s control over its own public policies
is withering.” The problem with this position would be that most states, which openly
practice a nation-first approach, are widely seen as authoritative and somewhat
tyrannical. The example of many Middle Eastern countries and North Korea would be
applicable. The latter’s human rights violations are detailed in the Human Rights
Watch 2018 Briefing Paper, which links Kim Jong Un’s “limited engagement with the
UN” to North Korea being “one of the world’s most repressive states.”5 This is why
allowing intervention by international law is normally seen as vital in liberal
democracies especially on the delicate matter of human rights. This idea has its roots in
the UN Responsibility to Protect doctrine, which established the responsibility of all
states to interfere by whatever means necessary, within a country failing to protect its
citizens from “mass atrocities.” But on the other hand, a strong sovereign government
is also necessary to prevent those atrocities. Somalia in this case now faces brutal war
crimes, being factionalized by al-Shabab where the government controls little
territory.6
Rothe and Mullins still make a point of how, by participating in international
courts, a country takes the risk of “forfeiting its claims to sovereignty if it fails to treat
its citizens according to an international standard of decency.” This is also a valid case
since; in the instance that a state does “fail,” the ICC and ICJ may take extreme
measures to intervene. This was witnessed when Sudanese President al-Bashir was
indicted by the ICC in 2010-and is still wanted today- for war crimes in Darfur.7 The
indictment has been criticized by majority of the African Union who feel it “threatens
that country’s fragile peace process” and that state leaders should be dealt with
domestically. A major flaw in the AU’s argument is that state leaders often escape
accountability in countries like Sudan with weak judicial systems, as Mary Kimani
points out in United Nations Africa Renewal.8
Rothe and Mullins’ argument leads us to another problem with IOs felt strongly
by the African Union- although not mentioned in their paper; that the ICC places
unfairly disproportionate focus on Africa. A Washington Post article9 highlighted this
saying “Of the nine situations the court is officially investigating, all are in Africa.
Every one of the 32 individuals indicted by the court so far are African.” As a result, in
2016 alone 3 African states- South Africa, Burundi and Gambia- submitted formal

5 https://www.hrw.org/news/2018/06/05/human-rights-north-korea
6 https://www.foreignaffairs.com/articles/2015-12-10/making-somalia-work
7 https://www.icc-cpi.int/darfur/albashir
8 https://www.un.org/africarenewal/magazine/october-2009/pursuit-justice-or-western-plot
9 https://www.washingtonpost.com/news/worldviews/wp/2015/06/15/why-so-many-african-

leaders-hate-the-international-criminal-court/?utm_term=.bae562c84a72

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Candidate Name: Anushe Khan Candidate Number: 0040
Centre Name: Lahore Grammar School Centre Number: PK816

withdrawal notifications to the ICC.10 This was followed by Philippines who officially
withdrew on March 17 2019.
Another of their complaints was that the Court is blind to states’ consent to the
Rome Statute; the Sudanese President for example was indicted despite Sudan not
being a signatory. This particular issue negates Robert Cryer’s point in the first source
of how IOs operate only in states that willingly and legally consent to their mandate.
Cryer was right to say that participation is a national choice, but he left out how
International Courts may not consider membership at all when indicting citizens and
governments- making them indeed supranational.
The disproportionate focus on Africa is part of a larger argument regarding
unequal power in IOs. Here we take the example of UN Security Council Resolution
(2002) granting complete ICC-immunity to U.S soldiers who participated in UN
peacekeeping missions in Bosnia. This Resolution11 passed in UNSC after massive
pressure from the U.S to veto all peacekeeping efforts if immunity for their soldiers
was refused.
With this example in mind, we return to Cryer and Delbruck, who argued the
purpose of IOs was to curtail unilateralism and sovereign nationalism. Clearly, we
have often seen the opposite effect. International law practitioner Liber Amoricum
provides an appealing depiction of this in his essay ‘What’s Wrong With International
Law?’ Amoricum, regarding sovereignty writes, “the very thing that is subjected to
control tends to escape control and ends up in control (not unlike Frankenstein’s
creation.)”

Perhaps the most accurate way of viewing the disparity between IOs and
sovereignty is to look at how the two balance each other out, rather than their conflict.
An overabundance of either of these can lead to different issues altogether. Complete
sovereignty allows continuation of dictatorial regimes like present-day North Korea,
while complete absence of it can perpetuate brutality and civil war as in Somalia. It is
more useful instead to look at how their relationship is far more complex rather than
being mutually exclusive. And by balancing out they may in fact complement each
other to prevent greater casualties of freedom.
Before venturing into this essay I was skeptical of the role IOs played. I had
noticed an increase in recent political science literature regarding the UN, ICJ and ICC
as being superfluous and was myself leaning in the same direction. However, I now
understand the importance of balance in a debate like this. Researching cases of states
being isolated made me see that choosing one or the other creates equally big
problems.
I believe an essay of this nature would benefit from more research in mid to
th
late 20 century literature to offer cross-comparison of how political discourse on IOs

10 Ssenyonjo, Manisuli. (2017). State Withdrawal Notifications from the Rome Statute of the
International Criminal Court: South Africa, Burundi and the Gambia. Criminal Law Forum. 29. 1-
57. 10.1007/s10609-017-9321-z.
11 United Nations, 12 June 2003 (RFE/RL) -- Resolution 1422

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Candidate Name: Anushe Khan Candidate Number: 0040
Centre Name: Lahore Grammar School Centre Number: PK816

has evolved over time. I made some attempt of this, using one source from 1982, but
this was only in limited capacity. At a higher level this essay would have discussed
more external factors shaping this debate like the role of non-state actors in influencing
IOs. Another factor I was unable to discuss are potential biases of most sources- their
writers being academics with little information available to indicate any. And while I
feel my sources are largely reliable academic articles/papers, I feel I haven’t used
enough official data to diversify my research and strengthen it. I sometimes felt my
paper was too theoretical and tried to balance this by discussing more examples, and I
hope when I have wider access to research I can more adequately achieve this.

Word count: 2000

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Candidate Name: Anushe Khan Candidate Number: 0040
Centre Name: Lahore Grammar School Centre Number: PK816

BIBLIOGRAPHY

Main Sources:
1) Cryer, Robert: “International Criminal Law vs State Sovereignty: Another Round?”, European
Journal of International Law, Volume 16, Issue 5, Pages 979-1000, (2005.)
https://doi.org/10.1093/ejil/chi156

2) Delbruck, Jost: "International Protection of Human Rights and State Sovereignty," Indiana Law
Journal: Vol. 57: Iss. 4, Article 3. (1982.)
http://www.repository.law.indiana.edu/ilj/vol57/iss4/3

3) Rothe, Dawn L. and Mullins, Christopher W: "The Death of State Sovereignty? An Empirical
Exploration." (2010.)
https://opensiuc.lib.siu.edu/ccj_articles/7/

Scholarly works:
4) Tallberg, Jonas and Sommerer, Thomas: “Decision-Making in International Organizations:
Actors, Preferences, and Institutions.” (2016.)
https://www.academia.edu/23904129/Decision-
Making_in_International_Organizations_Actors_Preferences_and_Institutions

5) Loughlin, Martin: "The Erosion of Sovereignty", Netherlands Journal of Legal Philosophy, 2,

57-81, (2016.)
https://www.elevenjournals.com/tijdschrift/rechtsfilosofieentheorie/2016/2/NJLP_2016_045_0
02_005

6) Lara, Richard Louis: “The Problem of Sovereignty, International Law, and Intellectual
Conscience”, Journal of the Philosophy of International Law, Volume 5, Issue 1, (2014.)
https://philarchive.org/archive/LARTPO-21

7) Krisch, Nico: “International Law in Times of Hegemony: Unequal Power and the Shaping of
the International Legal Order”, European Journal of International Law, Vol. 16, No. 3, (2005)
http://ejil.org/pdfs/16/3/301.pdf

8) Soons, Liber Amoricum A.H.A: “What’s Wrong with International Law?” (2015)
https://ris.utwente.nl/ws/portalfiles/portal/5598756/wessel109.pdf

News articles:
9) https://www.bbc.com/news/science-environment-44330709

10) https://www.aljazeera.com/news/2017/12/explained-donald-trump-attack-environment-
171203184502851.html#Paris

11) https://www.reuters.com/article/us-un-trump/at-u-n-podium-trump-to-tout-protecting-u-s-
sovereignty-idUSKCN1M114R

12) https://www.nytimes.com/2019/03/17/world/asia/philippines-international-criminal-court.html

Other:
13) www.un.org/en/genocideprevention/about-responsibility-to-protect.html

14) https://www.globalpolicyjournal.com/blog/11/09/2018/human-rights-state-sovereignty-and-
international-law-interview-richard-falk