FerreiraSnyman Sovereigntychangingnature 2007

Sovereignty and the changing nature of public international law: towards a world law?
Author(s): Anél Ferreira-Snyman

Source: The Comparative and International Law Journal of Southern Africa ,
NOVEMBER 2007, Vol. 40, No. 3 (NOVEMBER 2007), pp. 395-424
Published by: Institute of Foreign and Comparative Law
Stable URL: https://www.jstor.org/stable/23252645
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Sovereignty and the changing nature of
public international law: towards a world
lawT
Ariel Ferreira-Snyman
Abstract
The integration between the legal systems of different states has led to
shift towards the perspective that international law essential
constitutes cooperation and interdependence between states. In th
contribution the changing nature of public international law is discuss
against the background of globalisation, global governance, an
international constitutionalism. As a result of the changing nature
public international law, state sovereignty is increasingly limited in th
interests of the broader international community. The possib
development of a world law is directly linked to the limitation of t
sovereignty of states. This may simultaneously happen in two ways:
the one hand states may deliberately consent to rules that limit th
sovereignty by concluding treaties on wide range of subjects. On th
other hand, such rules develop irrespective of the consent of stat
mainly through jus cogens norms and obligations erga omne
Depending on the extent to which these rules place limitations on t
sovereignty of states, they may or may not be viewed as part of
emerging world law.
INTRODUCTION
Public international law is the legal field in which the integration bet
legal systems of different states has best manifested itself This integ
would seem, has inevitably led to a shift towards the perspe
international law essentially constitutes cooperation between states
of this approach, legal regulation has its roots in common values o
that cannot sufficiently be protected or promoted individually,
'This contribution is based on research done for the author's PhD thesis, entitled
of state sovereignty in public international law: towards a world law?', for which she
registered at the Leiden University in The Netherlands.
"B Juris, LLB, LLM (PUCHE). Associate-Professor: School of Law, University of S

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396 XL CILSA 2007
through a common endeavour shared by all members of the community

development of international law is increasingly shaped by these unive
values such as respect for human rights, democracy, and alleviatio
poverty.2 Environmental conservation, too, is becoming a subject of con
for all nations and will necessarily broaden the concept of international
Evidence indicates that human activities may have adverse and e
irreversible environmental impacts which can only be effectively addr
on the international level.4
International trade in goods and services between states and multinati

corporations expands every year. International law must constantly k
pace with the development of new technologies involving transnat
impact. International interdependence and financial globalisation are dra
people in different countries into close commercial ties and econo
relationships with one another. As a result of economic globalisat
national sovereignty is increasingly being eroded and displaced. It is esse
that modern international economic law formulate rules to guide t
economic relationships and processes.5
All these developments, relating to the increasing interdependence

cooperation between states, have contributed to the horizontal and vert
expansion of international law: because of the 'internationalisation
'globalisation' of human activity and relations, international law
expanded on a horizontal level. Scientific and technological innovation
resulted in international relations covering a wide field of issues
problems. Simultaneously, international law has expanded vertically. A
result of the wide scope and complexity of these shared issues and probl
'G Abi-Saab 'A "new world order?" Some preliminary reflections' 1994 Hague Yearbo
International Law 92; FX Perrez Cooperative sovereignty: from independence to
dependence in the structure ofinternational environmental law (2000) 139 is also of the opin
that 'international law is emerging from a limited set of rules of coexistence i
comprehensive network with multiple layers of rules of cooperation'. According to him the
of emphasis in international law from coexistence to cooperation is developing towards
acceptance of a duty of cooperation. Also see J Delbriick 'Prospects for a "world (inter
law?": legal developments in a changing international system' 2002 Indiana Journal of
Legal Studies 408.
2N Schrijver 'The changing nature of state sovereignty' 1999 BYIL 89; AY Seita 'Globali
and the convergence of values' 1997 Cornell International Law Journal 431.
3LK Caldwell 'Is world law an emerging reality? Environmental law in a transnational w
1999 Colorado Journal of International Environmental Law and Policy 228.
4 Our Global Neighourhood - The Report of the Commission on Global Governance (199
5CC Joyner International law in the 21s' century: rules for global governance (2005) 282

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Sovereignty and the changing nature of public international law 397
the interaction between states has become more frequent and penetrating.
Koh7 is consequently of the opinion that a transnational public law is
emerging. He maintains that there exist public law concepts that are rooted in
shared national norms and emerging international norms. These concepts
share a meaning in every national system, for example the concept of cruel,
inhuman or degrading treatment in human rights law, or the concept of the
internally displaced in refugee and immigration law.
According to Perrez current international society is losing the character of a

multicultural society and the doctrine of a plurality of worlds is increasingly
impossible. He is of the opinion that a comprehensive world-society-system
with a common world-culture is evolving.9 In this regard some legal scholars
identify the increasing existence of a world law. The idea of a world law was
preceded by the One World concept introduced by Republican presidential
candidate Wendell Wilkie in 1940. At the end of World War II in 1945, the
One World idea was reflected in the composition of the Security Council of
the United Nations Organisation with its five permanent members, as an
idealised version of global political and military power after the defeat of
Germany and Japan. The One World concept, premised on the notion of a
world government located in the United Nations itself, was however short
lived and ended as a result of the rapid onset of the Cold War and the
emergence of a de facto bipolar system of world public order, consisting of
the two politico-military blocs, Soviet and Western.'0
Delbriick" explains the origin of the concept world law (Weltinnenrecht),

introduced as an analogy to the concept world politics (Weltinnenpolitik), as
follows:
6G Rreijen Statefailure, sovereignty and effectiveness (Doctoral dissertation, Leiden University,

2003)9.
7HH Koh 'The globalization of freedom' 2001 The Yale Journal of International Law 306.
8Perrez n 1 above at 114 and 117. Also see AL Paulus 'International law after postmodernism:
toward renewal or decline of international law?' 2001 Leiden Journal of International Law
727-755 for an analysis of the postmodern critique of international law.
9Seita n 2 above at 462 notes that there are three types of commonalities essential for the
formation of a society, namely shared fundamental values by the prospective members, the fact
that prospective members identify themselves as belonging to the same community and the
universality of rights by which members expect that they all are entitled to the same rights and
have the same responsibilities. Also see B Simma and AL Paulus 'The "international
community": facing the challenge of globalization' 1998 EJIL 266-277.
10See E McWhinney The United Nations and a new world order for a new millennium' (2002)
44 NijhoffLaw Specials 4.
"Delbruck n 1 above at 402 n 2.

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398 XL CILSA 2007
The term "World Internal Law' is a literal translation of the German
term "Weltinnenrecht", which in turn is a term coined as an analog to

the term "Weltinnenpolitik" (World Internal Politics) first used by the
German philosopher CF von Weizsacker during the height of the Cold
War in the late 1960s. He opined that World Peace could only be
achieved by establishing a central World Authority and by radically
curtailing state sovereignty. Traditional state-centered international
politics needed to be transformed into a "Weltinnenpolitik" (World
Internal or Domestic Politics) replacing traditional power politics. The
term "Weltinnenrecht" (World Internal Law) is meant to signify an
analogous transformation of the traditional state centered notion of
international (inter-state) law.
Because the German notions do not easily translate into English, Delbruck
suggests the use of the terms world law and world politics. Berman,
Woodruff and Ames12 also submit that an emerging world society can be
identified and that the law that governs this society should be called world
law. They are of the opinion that the term world law will become
increasingly widely used and will eventually embrace, but not replace, the
term international law, introduced by Jeremy Bentham in 1789, and the term
transnational law, introduced by Philip Jessup in 1956. They are of the
opinion that the eventual acceptance of the term world law will be as
conceptually significant as the change which occurred when the term
international law replaced the older term law of nations.13
Similarly, Caldwell forsees that world-wide consensus on the

establishment of certain standards of conduct and justice for which all
governments are accountable, may lead to 'the emergence of a definable law
for nations, which might be called World Law, in distinction to the
conventional law of nations'. In this regard Delbriick15 maintains that factors
such as the growing consensus on the binding force of international law, the
broadening of international responsibility for the maintenance of
international peace and security, the international protection of human rights
and the environment, as well as the restriction of state sovereignty, are
indicative of the changes that the international order is undergoing. The
question may be asked whether these changes amount to a fundamental
12HJ Berman, RW Woodruff & JB Ames 'World law' 1999 Koers 379-384.
13 Wat 380.
14Caldwell n 3 above at 240.
15J Delbruck 'A more effective international law or a new "world law"? - Some aspects of the
development of international law in a changing international system' 1993 Indiana Law Journal
724.

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change of the nature of international law, that is, a transformation of

international law as an order between states into a new world law. Delbruck
reaches the conclusion that the answer would be affirmative if, as a rule, the
changes indicated mean that state sovereignty has been reduced to a level
where states would be subject to a comprehensive international legal order
and enforcement authority,16 and sovereign discretion to act would constitute
the exception in all cases where vital interests of the international community
are at stake.
The possible development of such a world law is thus directly linked to the
increasing limitation of the sovereignty of states. This may simultaneously
happen in two ways: on the one hand, states may deliberately consent to rules
that limit their sovereignty, while, on the other hand, such rules develop
irrespective of the consent of states. Depending on the extent to which these
rules place limitations on the sovereignty of states they may or may not be
viewed as part of an emerging world law.
CONCEPTS REFLECTING THE CHANGING NATURE OF

INTERNATIONAL LAW
In the literature on the subject, the changing nature of public inter

law is described by a variety of concepts. The most important of
include the following:
Globalisation
The term globalisation has mainly been used to describe some key aspects of
the recent transformation of world economic activity.17 Because of the
In 1960 Clark and Sohn suggested far-reaching amendments to the United Nations Charter in
order to reflect a true world law. They argued that the term world law 'necessarily implies the
law of a world authority, ie law which would be uniformly applicable to all nations and all
individuals in the world and which would definitely forbid violence or the use or threat of it as
a means for dealing with any international dispute. This world law must also be law in the sense
oflaw which is capable of enforcement...'. SeeGClark&LB Sohn World peace through world
law (2ed 1960) xv.
17The Report of the Commission on Global Governance n 4 above at 10. Joynern5 above at 288
defines the content and consequences of globalisation as follows: 'Globalization refers to the
ongoing worldwide integration of capital, currency, goods, people, advanced technologies, and
ideas that are moving across national borders at an accelerating pace. Globalization makes the
world ever more interconnected and interdependent and, in doing so, transforms foreign affairs.
In multifaceted ways, globalization affects the people, goods, information, norms, and
institutions of all states, for good and for ill. As technology continues to advance and as the world
becomes increasingly economically interdependent, the forces of globalization will penetrate into
societies in increasingly profound ways. It is here that international legal rules must be shaped
and implemented if various dimensions of globalizations have any chance to be regulated, or at
least directed, in manageable ways.' Also see D Shelton 'Protecting human rights in a globalizing

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400 XL CILSA 2007
process of globalisation there is a growing multiplicity of linkage

interconnections between states and societies which make up the pres
world system. Hence, certain events, decisions and activities in one par
the world come to have significant consequences for individuals
communities in other parts of the globe. Globalisation thus refers to
process that creates, furthers and intensifies a factual worldwide net
interdependencies and that may ultimately lead to the evolution of a commo
world-culture and world-society.18 Although globalisation is foremos
economic process, it has not left the law untouched.19 In this reg
Caldwell20 states that
[globalization of circumstances and issues is a phenomenon of our time

that is changing in the context of international relations and law.
Assumptions regarding the autonomy of national law and sovereignty
are beginning to change in fact, even though traditional doctrines persist
in political and judicial rhetoric. There is a growing mismatch between
the controversial law of nations and the need for agreements binding all
nations and peoples.
Globalisation has contributed to the promotion of basic democratic va

such as a free market economy, a democratic government, and the protectio
of human rights.21 As a result of, in particular, political globalisation
greater number of countries are accepting democracy and human rights
as the right to life, the right to freedom of expression and religion an
right to a fair trial.22
world' in C Ku and PF Diehl International law - classic and contemporary readings (

334-336; R McCorquodale & R Fairbrother 'Globalization and human rights' 1999 Hu
Rights Quarterly 736-739; D Forsythe 'The United Nations and human rights' in R Tha
E Newman (eds) New millennium, new perspectives: the United Nations, securit
governance (2000) 222-223 on the meanings of globalisation.
18Perrez n 1 above at 119. According to S Sur 'The state between fragmentatio
globalization' 1997 EJIL 428 the term 'globalisation' adds to the idea of a global interna
society in the following respect: 'It undoubtedly adds the idea of increased economic, ideolo
and cultural homogeneity as well as the idea of solidarity, a qualitative acceleratio
information flows, an interdependence of societies, a mobility of populations without bord
19See M Shapiro 'The globalization of law' 1993 Indiana Journal ofGlobal Legal Studies 3
20Caldwell n 3 above at 227. Also see HJ Steiner & P Alston International human rig
context: law, politics, morals (2ed 2000) 1307.
21Seita n 2 above at 431.
22Id at 430, 447-448. According to Seita the convergence of these fundamental values th
globalisation increases the possibility that a new perspective will develop that views membe
in the human race as the most significant societal relationship, except for nationality. He a
that it is unlikely that nationality will be surpassed as the most significant societal relation
but is nevertheless of the opinion that globalisation and the convergence of values may in
convince people in different countries that the second most important social group is the h
race and not a person's racial, religious or ethnic group. In some instances nationality m

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Globalisation has also raised the awareness of states of the importance of

distant international problems in relation to domestic issues.23 States can no
longer decide independently over issues such as refugees, development aid or
international investment, as these issues depend strongly on the protection of
human rights or the fairness of political systems in other parts of the world.24
Thus, the division between international law and domestic law is becoming
increasingly blurred.25
Global governance
In recent years the concept of global governance has regularly appeared in
different contexts in public international law literature.27 Makinda28 argues
included in a regional identification. For example, the identification of being a European will
replace that of the individual nationalities of the European Union (at 462 fn 106). Perrez n 1
above at 119 also notes that globalisation typically involves a process of denationalisation. See
further J Delbriick 'Globalization of law, politics, and markets - implications for domestic law:
a European perspective' 1993 Indiana Journal of Global Legal Studies 9-11; Perrez n 1 above
at 118-121 for a discussion of the terms 'internationalisation', 'multinationalisation',
'globalisation' and 'international interdependence'.
23Seita n 2 above at 429-430.
24Perrez n 1 above at 148. Also Joyner n 5 above at 294-295 notes that in the early 21st century
serious global problems have produced grave international concern. These problems include the
crisis of economic development in Third World countries, the disintegration of states through
ethno-separatism and civil wars, forced migrations and millions of displaced refugees,
transnational terrorism, overpopulation, transboundary air and water pollution, global warming,
the spread of HIV/AIDS, depletion of the ozone layer, drug trafficking and the proliferation of
weapons of mass destruction. Joyner submits that none of these issues is amenable to domestic
or unilateral resolution. If politically viable solutions are to be reached, international cooperation
is essential. He suggests that international legal rules supply proven ways and means to facilitate
these collaborative international efforts. He is of the opinion that, in the search for global
solutions to global problems, the system of international legal rules furnishes the best
opportunities for accommodating national interests with international priorities.
25K Mills 'Reconstructing sovereignty: a human rights perspective' 1997 Netherlands Quarterly
of Human Rights 278; P Tangney 'The new internationalism: the cession of sovereign
competences to supranational organisations and constitutional change in the United States and
Germany' 1996 The Yale Journal of International Law 400; Perrez n 1 above at 139.
26See further MP Ferreira-Snyman & GM Ferreira 'Global good governance and good global
governance' 2007 SAYIL 52-94.
27The terminology used in this regard lacks uniformity. The terms 'international' 'transnational'
'supranational'and 'global' are sometimes used interchangeably. I-J Sand 'Polycontextuality as
an alternative to constitutionalism' in C Joerges, I-J Sand & G Teubner (eds) Transnational
governance and constitutionalism (2004) 47 reserves the concept of international governance for
referring to intergovernmental relations, whereas the concept of transnational governance is
employed to indicate delegated and decentralised types of cooperation between private actors or
between the state and non-state actors, but in the latter instance only when the state is not using
its supreme sovereign power. The authors point out on x that 'transnational governance is neither
public, nor private, nor purely international, supranational nor totally denationalized'. It is
furthermore necessary to note that the term governance is not synonymous with government. The
African Development Bank (Bank Group Policy on Good Governance) July 1999 par 2.3 (found
on the internet at:

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402 XL CILSA 2007
that the term refers to formal and informal sets of arrangements in g

politics insofar as it implies that states alone cannot manage global aff
but has to acknowledge the contributions of international governmen
organisations, non-governmental organisations and multinati
corporations. As such it concerns transnational networks, institution-buildin
norm entrepreneurship, regime creation and the management of glob
change. Global governance deals with issues like woman's rights, hum
rights, development, democratisation, the environment, security
investment. It can therefore be said that global governance, as a produ
liberal thinking, embodies so-called global values, norms standards
rules.29 It concerns regimes or systems of rule, embracing both formal
informal regulatory mechanisms. Examples of the recent achievemen
global governance referred to by Makinda, include the treaty ban
landmines, the Koyoto climate convention, the International Criminal C
the World Trade Organisation, and the 'new generation' United Na
peace-keeping operations.30
In their foreword to the Report of the Commission on Global Governa

the co-chairpersons of the commission emphasise that global governanc
not to be equated with global government and that the commission is
proposing a move towards world government or world federalism. Wha
commission wishes to achieve is the eventual management of global aff
in such a way that it is responsive to the interests of all people
sustainable future, that is guided by basic human values, and which ma
global organisation conform to the reality of global diversity.31
http://www.afdb.org/pls/portal/docs/PAGE/ADB ADMIN PG/DOCUMENT/LEGALINFO

RMATION/BANK GROUP POLICY ON GOOD GOVERNANCE.PDF (visited July 2006))
describes governance against the background of the increased globalisation of political, social,
economic and environmental problems, as well as the continued erosion of state sovereignty as
transnational bodies increasingly mediate national concerns and press for universal laws. The
bank thus views the following as an appropriate definition of governance: 'a process referring
to the manner in which power is exercised in the management of the affairs of a nation, and its
relations with other nations.' See further on the concept governance: EO Eriksen & JE Fossum
'Europe at a crossroads: government or transnational governance?' in C Joerges, I-J Sand & G
Teubner (eds) Transnational governance and constitutionalism (2004) 120-125; G Dewry 'The
executive: towards accountable government and effective governance' in J Jowell & D Oliver
(eds) The changing constitution (5ed 2004) 285; D Curtin & I Dekker 'Good governance: the
concept and its application by the European Union' in DM Curtin & RA Wessels (eds) Good
governance and the European Union: reflections on concepts, institutions and substance (2005)
7, 10.
28S Makinda 'Recasting global governance' in R Thakur & E Newman (eds) New millennium,
new perspectives: the United Nations, security, and governance (2000) 163-164.
29Id at 166.
v,ld at 164.
31 The Report of the Commission on Global Governance n 4 above at xvi-xvii and 4.

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commission points out that although global governance has initially been
viewed as referring solely to inter-governmental relationships, it must now be
understood as also involving non-governmental organisations, citizens'
movements, multinational corporations and the global capital market.
Constantly interacting with all these institutions and bodies are the global
mass media with their potentially dramatic influence in international events.32
Global governance, furthermore, does not imply a single model or form of
global governance, or a single structure or set of structures. It rather entails a
broad, dynamic, and complex process of interactive decision-making that is
constantly evolving and responding to changing circumstances.33
The current composition of the Security Council is challenged by the idea

that the 'United Nations should be developed as a forum for global
governance in the service of democracy'.34 This suggestion requires that the
democratic deficiencies in the United Nations, as it is currently structured, be
rectified to develop this institution as a forum for democratic global
governance.35 The Commission on Global Governance36 is also of the
opinion that the United Nations must continue to play a central role in global
governance, because, as a result of its universal character, it is the only forum
where the governments of the world regularly convene on an equal footing in
an attempt to resolve the world's most pressing problems. However, in order
for the United Nations to fulfill this function effectively, the commission
recommends that the body should be reformed by, inter alia, increasing the
number of permanent and non-permanent seats on the Security Council,37
and gradually phasing out the veto power of the permanent members,
revitalising the General Assembly as a universal forum of the world's states
to make provision for regular theme sessions and a more streamlined agenda
and procedures, as well as the shutting down of agencies and institutions of
the United Nations that can no longer be justified in objective terms.38
11 Id at 2-3.
33W at 4.
34S Marks 'Democratic celebration, democratic melancholy' 1998 The Finnish Yearbook of
International Law 74.
i5Id at 74-75.
367%e Report of the Commission on Global Governance n 4 above at 6.
37There are currently serious efforts to increase the number of permanent members of the
Security Council to include states which contribute most to the United Nations in the areas of
finance, military and diplomacy and to achieve a fairer geographical composition. See J Dugard
International law: a South African perspective (3ed 2005) 486.
3877ze Report of the Commission on Global Governance n 4 above at 225-302. Also see WM
Reisman 'Redesigning the United Nations' 1997 Singapore Journal of International and
Comparative Law 1-27; E De Wet 'The international constitutional order' 2006 International
Comparative Law Quarterly 65.

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404 XL CILSA 2007
In view of the preceding discussion it is clear that global governance c

have important implications for state sovereignty. The changing realiti
the current globalised world increasingly necessitate far-reaching limita
on the sovereignty of states in the broader interest of the internatio
community.39
International constitutionalism
The changing nature of the international public legal order is reflected in the
emergence of an international constitutional order with an international value
system. Although the nation-state currently remains predominant in the
international law-making process, the international community is made up of
different communities on a national, regional (such as the European Union
and the African Union), or functional (such as the World Trade Organisation
and the United Nations) level, each with its own value system. In addition,
individuals, under certain circumstances, enjoy international legal personality
and thus constitute members of the international community.40 In this
increasingly integrated legal order, the constitutional legal orders of the
national, regional or functional communities complement each other in order
to constitute what De Wet calls 'an embryonic international legal order'
which has consequences for the relationship between national and
international law. She reaches the conclusion that the development of an
international community with an international value system results in the
replacement of the traditional, dualist system with a more integrated system
where individuals and state organs function simultaneously within the
national and international communities and legal orders.41 This process is
especially evident in the area of the protection of international human rights.
The quality of global governance will, according to the Commission on

Global Governance to a large extent be determined by the broad acceptance
of a global civil ethic to guide action within the so-called global
neighbourhood, coupled with leadership infused with that ethic at all levels
39In the foreword to their book C Joerges I-J Sand & G Teubner (eds) Transnational governance
and constitutionalism (2004) at ix remark as follows: 'The term transnational governance
designates various and untraditional types of international and regional collaboration among both
public and private actors. These legally-structured or less formal arrangements and the norms
emerging within them cannot be described or understood in terms of the more traditional legal
and political institutions and processes derived from the authorities of the nation-state and its
sovereignty, not only because they encompass both public and non-governmental actors, but also
because they link economic, scientific and technological spheres with political and legal
processes.'
^'De Wet n 38 above at 55-56.
4lId at 75.

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of society.4 This implies a common commitment to a set of core values that

can unite people of all cultural, political, religious, or politico- philosophical
backgrounds.43 Such a global ethic should include common rights and shared
responsibilities.44 It should encompass the rights of all people to a secure life,
equitable treatment, an opportunity to earn a fair living and provide for their
own welfare, the definition and preservation of their differences through
peaceful means, participation in governance at all levels, free and fair petition
for redress of gross injustices, equal access to information and equal access to
the global commons. At the same time, all people share a responsibility to
contribute to the common good, consider the impact of their actions on the
security and welfare of others, promote equity, including gender equity,
protect the interest of future generations by pursuing sustainable
development and safeguarding the global commons, preserve humanity's
cultural and intellectual heritage, be active participants in governance and
work to eliminate corruption.45
Maduro points out that global governance challenges national

constitutionalism insofar as it necessitates a re-thinking of the concepts of
ultimate authority (the national constitution as the extreme expression of
sovereignty and the ultimate source of power in the political and legal
organisation of society), self-government (national constitutional self
determination of states embodied in their capacity to determine their
domestic policies autonomously), and democratic autonomy (the autonomy
of the members of a national political community subject to their national
constitution, to structure the mechanisms of representation and participation
of their members in different institutions and formulate their policies).
However, it must be noted that global constitutionalism can never be a
carbon copy of national constitutionalism, and that global constitutionalism
may at times even clash with national constitutionalism. The challenge is to
find a balance between the two. If that can be achieved, global governance
may be instrumental in correcting some of the malfunctions of national
42 The Report of the Commission on Global Governance n 4 above at 46.

43Id at 48.
MId at 56-57.
45Z Pearson 'Non-governmental organizations and international law: mapping new mechanisms
for governance' 2004 The Australian Yearbook of International Law 84—85 points out that
although the concept of global civil society remains contested in certain circles, it is nevertheless
often regarded as an indication of the emergence of a global consciousness embodied in common
understandings that are accepted across state boundaries.
"'MP Maduro 'From constitutions to constitutionalism: a constitutional approach for global
governance' in D Lewis (ed) Global governance and the questforjustice volume I: international
and regional organizations (2006) 233-234.

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406 XL CILSA 2007
political communities. One may, however, expect that the identification of

number of core values acceptable to the international community as whol
would be a gradual and evolutionary process.48
THE LIMITATION OF STATE SOVEREIGNTY AS A RESULT OF

THE CHANGING NATURE OF INTERNATIONAL LAW
The principle of absolute sovereignty of equal states came to be rec

as the foundation of modern international relations theory.49 It is
accepted that sovereignty is a fundamental principle of international law
United Nations is founded on the principle of the sovereign equality of
members.50 States therefore often use sovereignty as a justification to
the non-intervention of other states in matters that they consider to be
exclusive jurisdiction.51 However, due to the role of interna
Id at 251.
48 Apart from the concepts discussed above, the changing nature of public international
evident in the so-called fragmentation of international law as a result of the
proliferation of especially international legal subsystems including self-contained r
diplomatic law, EC/EU law, humanitarian law and human rights law). D Lapas 'Som
on fragmentation of international law: disintegration or transformation?' 2007 CILSA
the opinion that the 'substantive' fragmentation of a legal system is a natural and p
stage in the evolution of any legal system and not a symptom of its disintegration. It is
submitted that the extent to which states allow the limitation of their sovereignty by
contained regimes, may contribute to the creation of a world law.
49The Report of the Commission on Global Governance n 4 above at 68 identifies the f
three norms that stem from the principle of sovereignty: first, that all sovereig
irrespective of their size, have equal rights. Second, that the territorial integrity a
independence of all sovereign states are inviolable. Third, that intervention in the dome
of sovereign states is not permissible. For an overview on the historical developm
notion of state sovereignty see MP Ferreira-Snyman 'The evolution of state sover
historical overview' 2006 Fundamina 1-28.
'"Article 2(1) of the United Nations Charter. A Cassese International law in a divided world
(1986) 129 argues that the United Nations is not based on the full equality of its members,
because art 27(3) of the Charter grants the right of veto to the permanent members of the Security
Council only. Therefore, the principle of equality laid down in art 2( 1) is to be interpreted merely
as a general guideline, which is weakened by the exceptions specifically laid down in law. He
nevertheless also points out on 129-130 that of all the fundamental principles that governs
international relations, the principle of equality in art 2(1) is the only one on which there is
unqualified agreement and support of all groups of states, irrespective of their ideologies,
political leanings and circumstances. All states agree on both the importance of the principle and
its basic contents. According to Cassese the conclusion is therefore warranted that 'sovereign
equality constitutes the linchpin of the whole body of international legal standards, the
fundamental premise on which all international relations rest.' Also see CBH Fincham Domestic
jurisdiction (1948) 181.
5IA Bodley 'Weakening the principle of sovereignty in international law: the international
tribunal for the former Yugoslavia' 1999 New York University Journal of International Law and
Politics 420-421. In the past the principle of sovereignty has often been misused by states. In this
regard The Report of the Commission on Global Governance n 4 above at 69 notes that states
have used sovereignty to shield themselves against international criticism of brutal and unjust
policies and in the name of sovereignty they have denied their citizens free and open access to

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organisations and the influence of universal norms and values, the present
idea of state sovereignty differs greatly from the classical understanding of
sovereignty as absolute.52 In a growing interdependent world where national
boundaries are increasingly permeable, traditional notions of territoriality,
independence and non-intervention are losing some of their meaning.53 It is
becoming more and more difficult to separate actions that have an exclusive
effect on one state's internal affairs from those actions that have an impact on
the domestic affairs of other states54 and, therefore, to define the legitimate
boundaries of sovereign authority. Consequently, states will have to accept
that, particularly in respect of common global issues, sovereignty has to be
exercised collectively. The principle of sovereignty and the norms that derive
from it must, therefore, be adapted to satisfy changing realities.55
International law limits the sovereignty of states in a number of ways and in a

variety of areas. The most important of these are multilateral treaties dealing
with a wide range of international issues, which limit sovereignty with the
consent of states, and the creation of international legal norms with the status
of jus cogens and international legal obligations with an erga omnes
character, which limit sovereignty without the consent of states.
Multilateral treaties
The twentieth century marked a growing interest among states m concluding

multilateral treaties. When a state accedes to a particular multilateral treaty,
that state may voluntarily relinquish certain elements of its own sovereignty
and independence.56 Multilateral treaties of particular importance in this
regard are the following:
Treaties establishing supranational institutions

The growing interdependence between states with regard to diverse issues
such as trade, security, human rights and the environment, as well as a
the world.
52See Perrez n 1 above at 46; Scrijver n 2 above at 65; A Kotaite 'Is there a lessening of state
sovereignty or a real will to cooperate globally?' 1995 Air and Space Law 288.
53 The Report of the Commission on Global Governance n 4 above at 68. Joyner n 5 above at
292-293 maintains that the forces of globalisation and interdependence combine to make
absolute sovereignty in the 21st century more fiction than fact, 'if for no other reason than the
economic and political impracticability of operating in foreign relations among thousands of
other international actors'.
54For example, environmental policies made in the USA can have an effect on employment and
pollution levels in Rio de Janeiro. See in this regard The Report of the Commission on Global
Governance n 4 above at 70.
55Id at 71.
56Bodley n 51 above at 425.

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408 XL CILSA 2007
number of attendant international problems, has compelled the creation o

international organisations as instruments to regulate newly emergin
international issues. These institutions, often with supranation
characteristics, provide a system of law that could 'pierce the veil o
sovereignty and influence the internal affairs of states'.57
In vanous parts of the world a process of regional integration is taking pla

States transfer certain aspects of their national sovereignty to a supranational
body,58 such as the European Union, the creation of which marked 'the mo
ambitious effort of industrialised countries to cede certain sovereig
competences',59 and its Southern counterpart, the African Union. These
institutions are created by states because they recognise that there are certain
issues which they cannot adequately address independently.60
A more communitarian international law is thus developing where state

pursue most of their individual interests through multilateral institutions.
The strengthening of international organisation and institutionalise
cooperation is regarded as the key to reaching new stability within the
international system.62 According to Delbriick63 this movement toward
increased institutionalisation of international cooperation indicates a growi
readiness of the international community to accept far-reaching restraints on
their sovereignty in favour of the implementation and enforcement of
international law. Simultaneously, consensus is growing as to the foundatio
"Tangney n 25 above at 403. Perrez n 1 above at 140 is of the opinion that '[b]y transferr
power to new international organizations, the states submit voluntarily to restrictions of thei
freedom and independence. Hence, these new international institutions further limit the radiu
of freedom of the states, and a new "supranational" structure emerges.'
58According to L Cram, D Desmond & N Nugent 'Reconciling theory and practice' in L Cram
D Dinan & N Nugent (eds) Developments in the European Union (1999) 5-6 the ter
supranational implies the existence of a power above or beyond the level of the nation-sta
enjoying a certain degree of autonomy from national governments. Also see S Villes 'The pa
to unity' in RJ Guttman (ed) Europe in the new century: visions of an emerging superpow
(2001)24.
59Tangney n 25 above at 406.
'"Mills n 25 above at 274. According to Tangney n 25 above at 400 these issues include 'nucle
proliferation; pollution and other global environmental issues; financial flows; refugees; transfer
of technology; the trade, labor, consumer, and tax consequences of globalized producti
patterns; and criminal law problems including drug trafficking and gun control'.
6lSimma & Paulus n 9 above at 276. I Simonovic 'Relative sovereignty in the twenty-fir
century' 2002 Hastings International and Comparative Law Review 377-378 is of the opinio
that international relations are experiencing a process of transformation. International relation
are transforming from an exclusively state dominated system where states are the holders of
the power into a more complex system where states, international organisations, multinatio
corporations and non-governmental organisations are sharing the balance of power.
62Delbriick n 15 above at 706.
aId.

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and binding force of international law which is a prerequisite for

effective international legal order as the basis of international peace.
Historically, the concept of sovereignty has played a crucial role in the

political development of African states. States that evolved from colonialism
have been particularly sensitive to any limitation of their sovereignty and to
the principle of non-intervention.64 According to Nagan and Hammer65
Africa is in the process of formulating a new idea of sovereignty in terms of
continent-wide obligations, thus subordinating the sovereignty of African
states to the continent's own constitutional and public order priorities and
values. They call this reformulation of sovereignty cooperative sovereignty.
By recognising the common interest of African governance, state and society
are strengthened through principles of cooperation in the common interests
of peace, human rights and development on a continent-wide base. There are
even NGOs, for example the African Unification Front,66 which openly
advocate a total disregard of state sovereignty under certain circumstances in
order to establish a so-called United States of Africa.67 Especially in view of
the cultural and religious differences in Africa, it may be expected that the
creation of a 'United States of Africa' will be a long and gradual process. At
this stage, at least, the African Union cannot be regarded as a federal or
confederal political entity.68 However, it remains clear that the eventual
formation of a continental government for Africa holds the potential for far
reaching implications for the sovereignty of African states. On the other
hand, it seems that in the European Union there is to some extent a re
discovery of the sovereignty of states which is evident in the non-acceptance
of a Constitution for the European Union and the instruction by the European
Council to draft a reform treaty without a constitutional character.69 One of
64WP Nagan and C Hammer 'The changing character of sovereignty in international law and
international relations' 2004 Columbia Journal of Transnational Law 109.
65Id at 169.
66See http://www.africanfront.com/ideologv.php (visited September 2007).
67 At its 9th Ordinary Session in Accra, Ghana, from 1 to 3 July 2007, the Assembly of the African
Union debated a proposal for the immediate creation of a 'United States of Africa'. The
Assembly rejected the proposal for the immediate creation of a continental government and
adopted the Accra Declaration, agreeing to take certain steps to accelerate the economic and
political integration of the African continent, including the formation of a Union Government for
Africa with the ultimate objective of creating the United States of Africa.
68C Heyns, E Baimu & M Killander 'The African Union' 2003 German Yearbook of
International Law 263; T Maluwa 'Reimagening African Unity: some preliminary reflections
on the Constitutive Act of the African Union' 2001 African Yearbook of International Law 9.
69The new reform treaty inter alia avoids mention of the EU anthem or flag, does not use the
term' constitution' and seeks an alternative title for the planned Minister of Foreign Affairs, such
as, Representative of Foreign Affairs. See Key points of EU reform treaty draff.
http://www.eubusiness.eom/Constitution/l 182427223.38/ (visited September 2007).

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the grounds on which France and the Netherlands rejected the Tre
establishing a constitution for Europe, was the fear of losing their nat
identity, inherent in the concept of sovereignty.70
As early as 1964 Friedmann identified the beginning of the integratio

West European states with a long tradition of national sovereignt
supranational communities. According to him contemporary internati
relations and law are developing on three different levels namely: (i) T
traditional system of intestate diplomatic relations or the relations of
existence'. The United Nations (in its principal political organs, the Gen
Assembly and the Security Council) is in essence an institutional
extension of this traditional international society, (ii) A transnational so
which is represented by increasing international cooperation in matters
common concern. The principal agents of these transnational relations are th
states, using multilateral or bilateral conventions in fields such
international transport, communications and health, together with se
public and private groups such as the International Red Cross, (i
supranational society in which the activities and functions of states a
merged in permanent international institutions. These internati
institutions derive their status from international treaties and are supported
the agreement and the contribution of the member states.
The developments referred to by Friedmann are evident in the establishm

of the World Trade Organisation in 1995 and the International Crimin
Court in 2002. An example of the kind of international issues the Wo
Trade Organisation deals with is contained in the preamble to the Wor
Trade Organisation Agreement72 which inter alia determines that optimal us
should be made of the world's resources in accordance with the object
sustainable development while at the same time seeking to protect
preserve the environment. Because of the rapid world-wide developmen
foreign investment opportunities, there is a need for an adequate set of
rules governing international foreign investment. International organisation
including the Organisation for Economic Cooperation and Development,
United Nations Conference on Trade and Development, the Internation
Monetary Fund and the World Trade Organisation, have engaged
70A Puttier From a European Constitution to a mere reform treaty - a step back in Eur
integration? (paper delivered at North-West University, Potchefstroom Campus, 22 Au
2007).
7IW Friedmann The changing structure of international law (1964) 37-38.
72Agreement Establishing the World Trade Organisation, 1994:
http://www.wto.org/English/docs e/leeal e/04-wto.pdf (visited May 2007).

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developing universal rules and fundamental principles for foreign investment

that might eventually provide the foundation for a universal investment law.73
It is possible that the world-wide application of these universal rules may
afford these rules the status of customary international law, and, eventually,
even that of jus cogens.
As a result of World War II there is general acceptance of the principle that

states that act as aggressors abuse their sovereignty, and that their leaders
may be accountable directly to the international community. The
establishment of this principle marked a revolutionary change in the ambit of
state sovereignty.74 There is increasing agreement amongst members of the
international community that those people, who commit gross violations of
internationally recognised human rights, should face international criminal
justice.75 On 17 July 1998 the majority of states that attended the Rome
Conference adopted the Statute of the International Criminal Court.76 The
jurisdiction of the court covers genocide, war crimes and crimes against
humanity. The establishment of the International Criminal Court is a
significant step towards the legitimisation of certain principles of national
responsibility and transnational law that have preference above claims of
national sovereignty.77 Wismer78 specifically views the International Criminal
Court system as an indication of the development of a world law where
certain supranational norms, which are not exclusive to one state's unique set
of legal rules, are enforced towards individuals directly. The creation of the
International Criminal Court is a clear indication of the international
community's willingness to hold individuals accountable when the exercise

of their state authority reaches beyond legal limits.79
Although states seek to retain control over the exercise of their transferred
powers, the freedom of action of individual member states is substantially
diminished.80
73Dugard n 37 above at 306 points out that foreign investment is currently regulated and
protected by more than 2000 bilateral investment treaties which make provision for certain
procedures concerning the settlement of investment disputes.
74Nagan & Hammer n 64 above at 160.
"Mills n 25 above at 84.
76Rome Statute of the International Criminal Court (UN Doc A/CONF 183/C 1/L 76/'Add2).
77Caldwell n 3 above at 234.
78P Wismer 'Bring down the walls! - On the ever-increasing dynamic between the national and
international domains' 2006 Chinese Journal of International Law 511-554.
79RA Brand 'Sovereignty: the state, the individual, and the international legal system in the
twenty first century' 2002 Hastings International and Comparative Law Review 292.
80Schrijver n 2 above at 76. Also see Bodley n 51 above at 422; Delbriick n 1 above at 406-407.

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Treaties protecting international human rights

Since the end of World War II it has been accepted generally tha
protection of fundamental human rights has become a matter of internatio
concern.81 States have adopted several international conventions on hu
rights, indicating that the protection and promotion of human rights
longer only an internal matter for individual states, but concerns
international community as a whole.82 It is therefore one of the objectiv
the United Nations to achieve international cooperation in promoting
encouraging respect for human rights and fundamental freedoms.83
In the past state sovereignty protected by the principle of non-interve

into the internal affairs of a state, has been a strong impediment in the wa
effective protection of human rights. Although the Security Council an
General Assembly established the well-founded interpretation and prac
with regard to article 2(7),84 that violations of internationally recognised an
protected human rights are not matters essentially within the domes
jurisdiction of member states, states nevertheless continued to
81 According to A Ross 'Geographies of justice: international law, national sovereignty

human rights' 2001 Finnish Yearbook of International Law 12 a global human rights re
began to emerge at the end of World War II. The Nuremberg trials, the drafting and de
human rights treaties and the establishment of the United Nations were key events in
development of human rights norms and law. E Brems Human rights: universality and dive
(2001) 13 contends that human rights are more than just a legitimate concern but a man
concern or a duty for the international community. Also see H Schermers 'Different aspec
sovereignty' in G Kreijen (ed) State, sovereignty and international governance (2002
Delbruck n 15 above at 712.
82Examples of human rights conventions adopted in the period immediately after World War II
include the Universal Declaration of Human Rights 1948 (GA Res 217 A(III) of 10 Dec 1948)
and the Convention on the Prevention and Punishment of the Crime of Genocide (GA Res 260
(III); 78 UNTS 277). According to Ross n 81 above at 13 the adoption of these human rights
conventions signalled a significant development in the sense that human rights law limits
governments in their exercise of power over their own citizens.
83Article 1(3) of the United Nations Charter states that is one of the purposes of the United
Nations 'to achieve international cooperation in solving international problems of an economic,
social, cultural, or humanitarian character, and in promoting and encouraging respect for human
rights and for ftindamental freedoms for all without distinction as to race, sex, language, or
religion'.
84Article 2(7) of the United Nations Charter reads as follows: 'Nothing contained in the present
Charter shall authorize the United Nations to intervene in matters which are essentially within
the domestic jurisdiction of any state or shall require the Members to submit such matters to
settlement under the present Charter, but this principle shall not prejudice the application of
enforcement measures under Chapter VII.' Chapter VII of the Charter deals with action with
respect to threats to the peace, breaches of the peace and acts of aggression.

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sovereignty and the non-intervention principle as a political tool to impede

the protection of international human rights.85
The principle of non-intervention is challenged by the international

community's belief that it has a 'responsibility to protect'.86 Humanitarian
intervention is therefore justified by contending that people matter most and
that states, and the international community, as a whole have a duty to
protect them.87 A shift away from the idea of unconditional sovereignty is
evident in the emergence of the concept of responsible sovereignty. Falk88 is
of the opinion that
[government legitimacy that validates the exercise of sovereignty

involves adherence to minimum humanitarian norms and a capacity to
act effectively to protect citizens from acute threats to their security and
well-being that derive from adverse conditions within a country.
The Independent International Commission on Intervention and State

Sovereignty was established in September 2000 by Canada and given the
mandate to investigate the relation between intervention for human
protection purposes and state sovereignty. The commission suggests that
sovereignty should be seen as the responsibility to protect. According to the
commission in their Report on the Responsibility to Protect this implies,
firstly, that the state authorities are responsible for the functions of protecting
the safety and the lives of citizens and the promotion of their welfare.
85Delbriick n 15 above at 715. According to Ross n 81 above at 10 states traditionally expressed

little concern for the manner in which another state treated its people. States only attended to
actions in another state when it affected their own political-economic interests. Correspondingly,
international law in its early stages of development primarily addressed the relations between
states and rarely addressed the actions of states with regard to the people in their territories.
Statehood and the principle of sovereignty were used to protect states against the intervention of
other states.
86Simonovic n 61 above at 372-373.
87Simonovic id notes that some authors attribute this change in the object of protection from
states to people to the evolution of state sovereignty into popular sovereignty. This theory
suggests that in the contemporary world the principle of sovereignty can no longer be used as a
shield against the actual suppression of popular sovereignty. A third-party state's intervention
to restore the power of a democratically elected government, or to restore democracy and respect
for basic human rights in another state, can be considered legitimate. However, there are also
opposing views which label this tendency toward international intervention as remains of the
colonial attitude, an attempt to create a world order based on values and interests particular to the
most powerful states, or as simply dangerous.
88RFalk 'Sovereignty and human dignity: the search for reconciliation' in HJ Steiner & P Alston
International human rights in context: law, politics, morals (2ed 2000) 582.
S9The Responsibility to Protect: Report of the International Commission on Intervention and
State Sovereignty (December 2001) 13 (found on the internet at http//www.iciss.ca/report2-en.asp
(visited March 2005)).

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414 XL CILSA 2007
Secondly, it suggests that the national political authorities are responsib

the citizens internally and to the international community through the Uni
Nations. Thirdly, this means that the agents of the state are responsible
their actions and are thus accountable for their acts of commission and
omission. In view of its approach to sovereignty as the responsibility to

protect, the commission supports intervention for human protection purposes
when major harm to civilians is occurring or imminently apprehended, and
the state in question is unable or unwilling to end the harm, or is itself the
perpetrator.90 Because, in principle, interventions should be carried out by the
Security Council to be legal, interventions by ad hoc coalitions or individual
states can be regarded as legitimate at the most.91 In a study on the issue of
humanitarian intervention after 9/11, Molier92 refers to the theory by Teson93
that state sovereignty should be exercised to protect the fundamental rights of
the individuals who live in the territory of the state. A state that continuously
violates the human rights of its citizens forfeits internal and external
legitimacy and can therefore no longer claim the protection offered by
section 2(4) of the Charter.94 In contrast to the commission's approach that
humanitarian intervention without Security Council authorisation is at most
legitimate, Teson thus regards humanitarian intervention as legal in
circumstances where a state is unable or unwilling to end serious human
rights violations.95 Molier concludes that, in theory, the concept of the
responsibility to protect replaces the doctrine of humanitarian intervention.
However, from a legal point of view, Security Council authorisation is still
needed for humanitarian intervention to be legal. He therefore proposes the
formulation of a general principle of international law to justify the use of
force to end human rights violations without Security Council authoris
ation.96 Should states be prepared to accept such a development, it would
undoubtedly be a significant step towards the creation of a world law.
On a regional level it is interesting to note that in contrast with the

Organisation of African Unity's inability to intervene in states to end gross
''"id at 16. Also see the discussion by H Strydom 'Peace and security under the African Union'
2003 SA YIL 74-76.
91 Report of the International Commission on Intervention and State Sovereignty n 89 above at
55.
92G Molier 'Humanitarian intervention and the responsibility to protect after 9/11' 2006 NILR
49.
93FR Teson Humanitarian intervention: an inquiry into lan' and morality (1997).
94Id at 98; 174. Also see FR Teson 'The liberal case for humanitarian intervention' in JL
Holtzgrefe and RO Keohane (eds) Humanitarian intervention: ethical, legal and political
dilemmas (2003) 93-129.
95Molier n 92 above at 50.
96ld at 52.

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and massive human rights violations committed on the African Continent,

the Constitutive Act of the African Union has moved much further towards
limiting the sovereignty of member states and, even, in some instances,
permits the involvement of the Union in the domestic affairs of African
countries, irrespective of the principle of non-interference by member states
in the internal affairs of others.98 Article 4(h) of the Constitutive Act of the
African Union confers an institutional right," but not a duty, on the African
Union to intervene in the conflicts of member states100 in certain grave
circumstances, namely war crimes, genocide and crimes against humanity.101
The Protocol on Amendments to the Constitutive Act of the African Union,
adopted in February 2003, which is not yet in force, amends Article 4(h) by
extending the right of the Union to intervene in a member state to include
instances of 'a serious threat to legitimate order to restore peace and stability
to the Member State of the Union upon recommendation of the Peace and
Security Council'.102 The expansion of article 4(h) is intended to give the
For example, the excesses of Idi Amin in Uganda and Bokassa in the Central African Republic
in the 1970's, and the Rwandan Genocide in 1994. See in this regard B Kioko 'The right of
intervention under the African Union's Constitutive Act: from non-interference to non
intervention' 2003 International Review ofthe Red Cross 812-814. Also see NJ Udombana 'The
institutional structure of the African Union: a legal analysis' 2002 California Western
International Law Journal 76.
98Article 4(g) of the Constitutive Act of the African Union. See M Du Plessis 'The African
Union' in J Dugard International law: a South African perspective (3ed 2005) 557; F Viljoen
'The African Charter on Human and Peoples' Rights / The travaux Preparatoires in the light of
subsequent practice' 2004 Human Rights Law Journal 326. Kioko n 97 above at 819 maintains
that the African Union has moved away from the principle of non-interference or non
intervention to, what he refers to as, the doctrine of'non-indifference'.
"Since the African Union has a right to intervene, a decision to that effect can only be avoided
by a collective decision not to intervene in terms of Article 7(1) of the Constitutive Act which
determines that' [t]he Assembly shall take its decisions by consensus or failing which, by a two
thirds majority of the Member States of the Union'. See further A Abass and MA Baderin
'Towards effective collective security and human rights protection in Africa: an assessment of
the Constitutive Act of the African Union' 2002 NILR 16.
100Abass and Baderin id at 15 'points out that Article 4(h) of the Constitutive Act does not have
the same effect as its analogous provision in Article 2(7) of the United Nations Charter. While
art 2(7) is directed specifically at the United Nations and not at its members (who are restrained
from interfering in the internal affairs of other states by the customary principle of non
intervention), art 4(h) restrains the African Union as an institution from interfering in the internal
affairs of its member states
101 Abass and Baderin id at 24 observe that the inclusion of these crimes, which either are jus
cogens or obligations erga omnes, indicates that African States now 'recognize the inextricable
link between an effective collective peace and security system and the observance of human
rights of their people in their quest for peace and security on the continent'.
102Article 4 of the Protocol on Amendments to the Constitutive Act of the African Union,
adopted by the 1 st Extra-Ordinary Session of the Assembly of the African Union, Addis Ababa
(Ethiopia), 3 February 2003 (found on the internet at:
http://www.africa-union.Org/root/au/Documents/Treaties/T ext/Protocol
%20on%20Amendments%20to%20the%20Constitutive%20Act.pdf (visited May 20071).

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416 XL CILSA 2007
African Union more flexibility to decide on intervention by inclu

situations that threaten regional or national peace and security, there
further limiting the opportunity of states to advance the objection of
interference in their internal affairs.103
A consequence of the international protection of human rights is

weakening of the notion of absolute state sovereignty and a simultan
increase in mutual solidarity between states.104 The limitation of
sovereignty is thus explained by the argument that human rights are
longer essentially within the domestic jurisdiction of a state, but concern th
entire international community. It is therefore generally accepted th
international human rights law has binding force limiting the freedo
states to engage in certain activities within their territorial boundaries.105
International environmental law and human rights are recognised as sharing

close relationship. It is affirmed by modern legal rules that a fundame
human right is the right to live in a clean environment. A polluted, degrade
or desecrated environment violates that fundamental right. Likewise
poverty and human degradation, which demonstrate the connection bet
international environmental law and sustainable development.106 Theref
the world community needs to manage its activities in order to keep t
adversities within bounds and redress current imbalances. There is a clear
need for integrated global management of the links among poverty,
population, consumption and the environment, as well as a world-wide
acceptance of the discipline of sustainable development.107
The need for environmental protection is increasingly becoming a global

concern challenging especially the territorial sovereignty of states. In this
regard Bowman108 notes that
it has become common to observe that the natural environment knows
no political boundaries and that the traditional regime of resource
103Kioko n 97 above at 812; 817.

l04Schermers n 81 above at 187.
105Perrez n 1 above at 50 fn 318; Brand n 79 above at 292; Ross n 81 above at 13; Joyner n 5
above at 293.
106Joyner n 5 above at 219.
l07Joyner id at 221 submits that it is the current task of national governments to promote the
integration of domestic environmental statutes and international legal rules, with a view towards
enhancing protection and towards strengthening conservation and international legal rights.
I08M Bowman 'The nature, development and philosophical foundations of the bio-diversity
concept in international law' in M Bowman & C Redgewell (eds) International law and the
conservation of biological diversity (1996) 12.

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exploitation, grounded in the notion of territorial sovereignty, requires to

be replaced by more overtly collective approaches.109
Currently there is no global environmental organisation analogous, for

example, to the World Trade Organisation and its Dispute Settlement Body
to specifically address environmental matters. Apart from certain 'sectoral'
positive obligations, for example, to protect and preserve the marine
environment, there is also no general treaty or customary law obligation to
protect and preserve the environment per se.u<> The Draft Articles on State
Responsibility provide a broad framework for international environmental
law.111. In the Trail Smelter Arbitration"2 the Arbitration Tribunal applied
the principle of state responsibility in the context of international
environmental law by stating that
no state has the right to use or permit the use of territory in such a
manner as to cause injury by fumes in or to the territory of
another or the properties or persons therein, when the case is of
serious consequence and the injury is established by clear and
convincing evidence.113
Because of, inter alia, the non-reciprocal nature of international

environmental obligations, the traditional rules of state responsibility,
however, provide limited assistance for the enforcement of international
109Also Perrez n 1 above at 135 maintains that 'today it is clear that economic, social and
ecological problems almost never conform to often artificial boundaries of states ... and that the
earth has therefore to be understood as an interdependent physical, bio-chemical ... global
system. Thus it becomes increasingly artificial and difficult if not impossible and dangerous to
departmentalize the biosphere of humans ...'
' l0C Redgwell 'International environmental law' in MD Evans International law (2 ed 2006) 686.
111 Draft Articles on the Responsibility of States for Internationally Wrongful Acts (see the Report
of the International Law Commission, General Assembly Official Records, 56th Session,
Supplement 10 (A/56/10) 29 (2001)). In terms of art 2 of the Draft Articles a state commits a
wrongful act when 'conduct consisting of action or omission is attributable to the state under
international law' and that conduct constitutes a breach of an international obligation of the state.
Also see Dugard n 37 above at 393.
U2(l938-1941) 3 RIAA 1905.
1!3At 1956-1966. The principle of state responsibility in the context of international
environmental law was subsequently confirmed by the International Court of Justice in its
advisory opinion on the Legality of the Threat or Use of Nuclear Weapons 1996ICJ Reports 226
by stating that 'the existence of the general obligation of states to ensure that activities within
their jurisdiction and control respect the environment of other states or of areas beyond the
national control is now part of the corpus of international law relating to the environment' (at par
29). The principle of state responsibility is further enunciated in the 1972 Stockholm Declaration
(1972) 11 ILM 1416 (art 2), the 1992 Rio Declaration (1992) 31 ILM 874 (art 2) and the 1982
Law of the Sea Convention 1833 UNTS 396 (art 194).

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418 XL CILSA 2007
standards of environmental protection. Dugard identifies a need f

community response to environmental issues with the emphasis
prevention and regulation rather than on reparation and adjudication,
which aims at the control and avoidance of environmental harm and at the
conservation and sustainable development of natural resources. The emphasis

of international environmental law is, therefore, on the development of
supervised treaty regimes to protect the environment. These treaties are often
preceded by so-called 'soft law'116 found in guidelines, standards and
principles enunciated at international conferences.'17 Although the vast
majority of environmental rules are found in treaties, state conduct is also
governed by customary law norms."8
The increasing common interest of the international community in

addressing transboundary environmental issues119 clearly has significant
implications for the sovereignty of states. Although territorial sovereignty, as
one of the fundamental pillars of international law, poses challenges to the
implementation and development of international environmental law,120 there
is an increasing interdependence between states accompanied by a concern in
international law with matters within states, which challenge the traditional
notion of sovereign borders. In a study on the idea of cooperative sovereignty
in international environmental law, Perrez121 states that
[a]t the end of the 20th centuiy it is well accepted that sovereignty as
internal self-determination and independence from any superior power
and authority is guaranteed by and subject to international law ...
However ... [t]he claim for independence may, in the light of growing
II4Redgwell n 110 above at 665; Dugard n 37 above at 396.

"5Dugard n 37 above at 396-397.
"6Dugard id at 37-38 describes 'soft law' as 'imprecise standards, generated by declarations
adopted by diplomatic conferences or resolutions of international organisations, that are intended
to serve as guidelines to states in their conduct, but which lack the status of law'.
117For example, the Stockholm Declaration of the United Nations Conference on the Human
Environment (1972) 11 ILM 1416; the Rio Declaration on Environment and Development
(1992) 31 ILM 874; and the Johannesburg Declaration on Sustainable Development (2002)
A/CONF.199.L6.
"8The most significant of these include the 'the good neighbour' or 'no harm' principle, the
obligation to consult and notify of transboundary harm, the 'polluter pays' principle, the
principle of preventative action and equitable utilisation of shared resources. See in this regard
Redgwell n 110 above at 663-664; Joyner n 5 above at 206-209.
119P Birnie 'The role of international law in solving certain environmental conflicts' in JE Carroll
(ed) International environmental diplomacy: the management and resolution of transfrontier
environmental problems (1988) 99-105 as reprinted in D Kanton, P Mathew & W Morgan
International law: cases and materials (2005) 880.
mId at 881.
121Perrez n 1 above at 66.

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global interdependencies, well become empty of any content, and the

traditional principle of non-intervention may run short of enabling the
framework for international peace and welfare. And good
neighborliness may require more than mere respect and non
intervention. Similarly, in a changing world authority may require more
than mere respect and non-intervention: it may require cooperation.
A further challenge to the implementation of international environmental

standards is the tension between the notion of permanent sovereignty and
international environmental law. The principle of permanent sovereignty,
which originated during the decolonisation period in the 1960s, seems to
offer unlimited rights to the use and exploitation of natural resources.
International environmental law, on the other hand, militates against
unlimited freedom in an attempt to limit the negative effects on other states
and in common areas outside national jurisdictions.122 In an analysis of the
effect of bio-diversity (included in the Convention on Biological Diversity)
on state sovereignty, Scholtz123 maintains that the notion of permanent
sovereignty, as the right of states to decide freely and independently on the
use and exploitation of their natural resources, is an outdated concept which
fails to meet the existing challenges of an ever increasing interdependent
world. Since permanent sovereignty creates a duty to respect other states'
sovereignty over their natural resources, it requires cooperation.124 He
therefore submits the use of the term custodial sovereignty125 in relation to
the issue of bio-diversity:
This notion entails that a state is the trustee of its global environmental
resources, and that other states have an expectation that the relevant
state will protect these resources. Other states are burdened with the
duty to support the custodial state to fulfil its obligations. The custodial
state is still entitled to exploit its resources in accordance with its
(permanent) sovereignty, but the latter is restricted by the expectations
l22Birnie n 119 above at 882-883. Birnie (at 883) points out that the tension between permanent
sovereignty and international environmental law is reflected in Principle 21 of the 1972
Stockholm Declaration on the Human Environment (1972) which reads as follows: 'States have
in accordance with the Charter ofthe United Nations and the principles of international law, the
sovereign right to exploit their own resources pursuant to their own environmental policies, and
the responsibility to ensure that activities within their jurisdiction or control do not cause damage
to the environment of other States or of areas beyond the limits of national jurisdiction.'
123W Scholtz 'Animal culling: a sustainable approach or anthropocentric atrocity?: Issues of
biodiversity and custodial sovereignty' 2005 MqJICEL 21-25.
l2AId at 23.
l25The idea of 'custodial sovereignty' in international environmental law seems to be similar to
the idea of a 'responsibility to protect' in international human rights law.

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420 XL CILSA 2007
of other states. The sovereignty of the custodial state further enables it to

deter unwanted aggression by other states regarding its resources. 126
The question that remains is: what are the consequences of a breach o
environmental obligation? In terms of the Draft Articles on Sta
Responsibility a state injured by the internationally wrongful act of an
state is entitled to obtain full reparation from the latter in the form
restitution in kind, compensation, satisfaction and assurances and guara
of non-repetition.127 Although it is not generally recognised, Caldwe
suggests that a common law for nations is in effect emerging. Accordin
him the law of nations becomes a law for nations, notably in cases in w
prevention rather than remediation is the only safeguard for health an
environment. If the actions of a particular government threaten
environmental integrity of its own or other states, or impair the life-suppo
capability of the earth, such actions, if found to be crimes perpetrated agai
the environment, may also be crimes against humanity. An example of
would be the discharge of crude oil into the Persian Gulf and the torchi
oil wells in Kuwait by the government of Iraq under the former dictato
of Saddam Hussain, which have widely been regarded as crimina
addition to crimes directly impacting nature, violence against people, su
scorched earth practices in war and the use of weapons of mass destruc
may be regarded as environmental crimes against humanity.129
International legal norms with the status of jus cogens and obligation
erga omnes
Traditionally, consent forms the basis of a state's participation

international community.130 Dugard131 explains as follows:
126Scholtz n 123 above at 25. This idea is not entirely new. In 1998 Baslar pointed out that
international spaces and national and cultural resources such as the open sea, Antarctica, the
environment and human rights form part of the common heritage of mankind. He suggests the
use of the term 'stewardship sovereignty' in order to regulate the inherent tension between the
notions sovereignty and common heritage ofmankind. See K Baslar The concept of the common
heritage of mankind in international law (1998) 117-155.
127See Article 30, Article 31 and Articles 34-37.
l28Caldwell n 3 above at 239.
n9Id at 237-238.
l30The Dutch jurist Cornelius van Bynkershoek, was one of the early positivists who regarded
consent, in the form of custom or treaty, as the basis of international law. In his works De
Domino Maris (1702), De Foro Legatorum (1721) and Quaestionum Juris Publici (1737) he
stresses that consent and not the principles of natural law, forms the basis of obligations in terms
of international law. See in this regard Dugard n 37 above at 12.
l31Dugard n 37 above at 40.

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[International society is viewed as a horizontal system premised on the

sovereign equality of states, while international law is seen as a body of
rules based on consent and characterized by their neutrality. A necessary
consequence of this is that all legal norms are equal in status.
This horizontal character of public international legal norms has been

modified insofar as a hierarchy of rules has been created. Those norms that
can be classified as peremptory norms from which no derogation is
permitted, namely jus cogens and obligations erga omnes, take the highest
position in this hierarchy and amount to a limitation on the sovereignty of
states.132 Dugard133 submits that the concepts of jus cogens134 and obligations
erga omnes have had a profound effect on international law. Together these
notions have transformed international law from a system in which all rules
carried equal weight, to a system of 'graduated normativity' in which certain
norms enjoy a higher status. This development has been challenged on the
ground that the international community has not yet evolved to a point that
such a two-tier system can be sustained. Nevertheless, there can be little
doubt that these concepts have transformed the nature and structure of
international law.
Although international human rights are mostly contained in treaties, certain

of these human rights have already attained the status of customary
international law and even jus cogens, in other words, principles from which
derogation either by legislation or by treaty is prohibited.135 Human rights
principles can therefore be binding on states without specific consent on their
part. The implication of this is that if states are bound by these principles,
part of their sovereignty has been eroded.136 There is also an increasing
acceptance of fundamental rights accorded the status of obligations erga
omnes, because of their extraordinary importance for the international
community.137
132According to Delbriick n 1 above at 430 contemporary international law has entered a process
of constitutionalisation, which is evident by the increasing 'hierarchisation' of international law.
Also see T Koji 'Emerging hierarchy in international human rights and beyond: from the
perspective of non-derogable rights' 2001 EJIL 927-936.
mDugard n 37 above at 45^16.
134The content of jus cogens norms is, however, not completely clear. Dugard n 37 above at
43-44 suggests that the prohibition on the aggressive use of force certainly constitutesjus cogens,
while the prohibitions on slavery, genocide, racial discrimination (including apartheid) torture
and the denial of self-determination enjoy widespread support to qualify for this status.
135Schermers n 81 above at 187.
136Mills n 25 above at 277.
l37Delbruck n 15 above at 713.

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422 XL CILSA 2007
A universally accepted core of human rights would be an impor

characteristic of a so-called world law. The claim that human rights a
universal is, however, often in opposition to claims of national sovereig
and respect for the principle of non-interference in the domestic affai
states.138 This tension is evident in the, often futile, debate between
competing ideologies of universalism and cultural relativism.139 One of
grounds on which states often elect to file a reservation to a provision
specific human rights treaty relates to the cultural differences between sta
Since these reservations are usually difficult to reconcile with the object
purpose of the treaty to which they apply, they create a major obstacle in t
process of universalizing human rights and thus, simultaneously, to t
eventual creation of a world law.
The ideal of achieving a generally accepted universality of human right

thus not fully been realised. However, the commitment of the internat
community of states to the promotion of the universality of human rights
applying, protecting and enforcing all human rights in an equal manner
affirmed at the World Conference on Human Rights in Vienna in 1993
Vienna Declaration140 provides as follows:
All human nghts are universal, indivisible and interdependent and

interrelated. The international community must treat human rights
globally in a fair and equal manner, on the same footing, and with the
same emphasis. While the significance of national and regional
particularities and various historical, cultural and religious backgrounds
must be bome in mind, it is the duty of states, regardless of their
political, economic and cultural systems, to promote and protect all
human rights and fundamental freedoms.141
The increasing acceptance that the protection of human rights can no lo

be regarded as an internal matter, is a major factor in convincing states
sovereignty is not absolute, but that it must be subordinated to certa
universally accepted norms and standards.142 It is the responsibility of
states to work towards this goal, while, at the same time, allowing for
accommodation of reasonable practices and traditions distinctive
l38Brems n 81 above at 13.

l39See further GM Ferreira and MP Ferreira-Snyman 'The impact of treaty reservations on
establishment of an international human rights regime' 2005 CILSA 171-177.
l40Vienna Declaration and Programme of Action, World Conference on Human Rights (U
A/CONF.157/23 (1993)).
141 At par 5.
I42CG Weeramantry Universalizing international law (2004) 112-113

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particular culture. The fact that some human rights have already attained
the status of jus cogens and/or erga omnes norms indicates a significant
development in the process of universalising human rights.144
CONCLUSION
The changing realities in today's globalised world and the cons

interdependence between states necessitate far-reaching limitations
sovereignty of states in the broader interest of the international commu
The changing nature of public international law as a result of, in par
the impact of globalisation, global governance and the emergence o
international constitutional order may, at least, be indicative of a mo
towards the creation of a so-called world law. Where this developme
finally end is an open question. Should the creation of especially re
organisations and the subsequent transfer by states of certain aspects of
sovereignty to these institutions, continue unabated, there might eve
within the international community exist only a number of regional 'poc
of sovereignty in the form of international organisations consistin
member states invested with only the most basic aspects of sovere
Although one can accept that this is unlikely to happen overnig
continuing limitation of sovereignty might eventually result in a shift f
the state as locus of sovereignty to international and regional organi
Over and above this, the creation of a hierarchy of international lega
with the status of jus cogens and obligations erga omnes would app
See J Church, C Schultze & H Strydom Human rights from a comparative and inte
law perspective (2007) 196-201 for a discussion of the discretion of states to determine
and extent to which a specific human rights treaty is applicable in their respective
jurisdictions, generally known as 'the margin of appreciation'. Although the authors are
in submitting that states should be allowed to contextualise and give effect to huma
treaties in a manner most suitable to their domestic circumstances, the margin of this d
should not be so wide that it merely again constitutes relativism.
l44Delbruck n 15 above at 714. After discussing the divergences in the philosophical and
conceptions of human rights and pointing out that states (especially Western and Social
have different views on the protection of human rights, A Cassese Human rights in a c
world (1990) 63-67 nevertheless reaches the conclusion that there are certain factor
gradually moderate and mitigate these ideological and political differences to some
Cassese inter alia regards the existence of a set of general standards in the form of the U
Declaration of Human Rights and the two 1966 Covenants (however diversely interp
applied by states) as an important factor in the process of unifying the different conc
States are increasingly recognising a restricted core of universally accepted values an
and reaching consensus on their relative order of importance (hierarchy). Since almost
seem to agree that the gravest human rights breaches are genocide, racial discrimination
and the refusal to recognise the right to self-determination, it indicates that at least an
core of human values has developed among a significant number of states in the world.
foresees that 'this agreement in principle will gradually come to embrace an increasin
range of rights' (at 65).

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424 XL CILSA 2007
boil down to the development of a form of legal sovereignty in terms o

which the legislative, executive and judicial conduct of states continuous
need to be measured against certain international legal norms.145 An
possible creation of a world law would at this stage in the development
public international law, take place principally through the concepts of ju
cogens and obligations erga omnes, and not through the conclusion
treaties, simply because states may at any time decide to terminate thei
participation in a particular treaty.
I45ln this regard it is interesting to note that the Constitution of the Republic of South Afric
1996 in section 233 determines that 'when interpreting any legislation, every Court must pref
any reasonable interpretation of the legislation that is consistent with international law over an
alternative interpretation that is inconsistent with international law'.

14.139.241.51 on Mon, 08 Apr 2024 08:27:39 +00:00

FerreiraSnyman Sovereigntychangingnature 2007

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Sovereignty and the changing nature of public international law: towards a world law?

Author(s): Anél Ferreira-Snyman

Stable URL: https://www.jstor.org/stable/23252645

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through a common endeavour shared by all members of the community

International trade in goods and services between states and multinati

All these developments, relating to the increasing interdependence

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According to Perrez current international society is losing the character of a

Delbriick" explains the origin of the concept world law (Weltinnenrecht),

6G Rreijen Statefailure, sovereignty and effectiveness (Doctoral dissertation, Leiden University,

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The term "World Internal Law' is a literal translation of the German

term "Weltinnenrecht", which in turn is a term coined as an analog to

Similarly, Caldwell forsees that world-wide consensus on the

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change of the nature of international law, that is, a transformation of

CONCEPTS REFLECTING THE CHANGING NATURE OF

In the literature on the subject, the changing nature of public inter

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process of globalisation there is a growing multiplicity of linkage

[globalization of circumstances and issues is a phenomenon of our time

Globalisation has contributed to the promotion of basic democratic va

world' in C Ku and PF Diehl International law - classic and contemporary readings (

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Globalisation has also raised the awareness of states of the importance of

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that the term refers to formal and informal sets of arrangements in g

In their foreword to the Report of the Commission on Global Governa

http://www.afdb.org/pls/portal/docs/PAGE/ADB ADMIN PG/DOCUMENT/LEGALINFO

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The current composition of the Security Council is challenged by the idea

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In view of the preceding discussion it is clear that global governance c

The quality of global governance will, according to the Commission on

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of society.4 This implies a common commitment to a set of core values that

Maduro points out that global governance challenges national

42 The Report of the Commission on Global Governance n 4 above at 46.

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political communities. One may, however, expect that the identification of

THE LIMITATION OF STATE SOVEREIGNTY AS A RESULT OF

The principle of absolute sovereignty of equal states came to be rec

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International law limits the sovereignty of states in a number of ways and in a

The twentieth century marked a growing interest among states m concluding

Treaties establishing supranational institutions

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number of attendant international problems, has compelled the creation o

In vanous parts of the world a process of regional integration is taking pla

A more communitarian international law is thus developing where state

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and binding force of international law which is a prerequisite for

Historically, the concept of sovereignty has played a crucial role in the

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As early as 1964 Friedmann identified the beginning of the integratio

The developments referred to by Friedmann are evident in the establishm

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developing universal rules and fundamental principles for foreign investment

As a result of World War II there is general acceptance of the principle that

community's willingness to hold individuals accountable when the exercise

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