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IBRU: Centre for Borders Research

Sovereignty, Territory & International Law

1 April, Track 1 Session 1

From Segregation to Integration: State Sovereignty and International Criminal Law

Ms Noora Arajärvi
European University Institute, Italy

“No legal principle – not even sovereignty – should ever be allowed to shield genocide, crimes against humanity and mass human suffering.”

The incentive of this paper is not to elucidate state sovereignty as an enemy, or hindrance, to international criminal law, nor vice versa, but to show that it is possible to construct a conceptual framework where the both exist in synchronization.

State sovereignty is not a static concept. This paper examines the notion of state sovereignty, first providing an outlook on the historical developments and the relationship between state sovereignty and international criminal law, then discussing the purpose of sovereignty and how the international community can be conceived as protecting sovereignty and its raison d'être in the light of international criminal justice.

The scope of absolute state sovereignty, authority over all matters as presented by Hobbes , cannot effectively correspond to existing global problems. The subsistence of the people living in the state is necessary for its existence and therefore the sovereign powers of the state should be limited so that the powers cannot be used to infringe the fundamental interests of the people. The protection of human rights can be derived from this rationale because for maintaining sovereignty the state must preserve the subjects that comprise it or are the very reason for its existence. If sovereignty of the state is understood to exist for the people, then gross human rights violations endanger the purpose of the state sovereignty – the interests of the people.

Yet in a situation where a state is unable or unwilling to carry out its duties for the people, the responsibility falls on the international community. Article 17 of the Statute of the International Criminal Court determines that the state holds primary jurisdiction and only that when the state is “unwilling or unable genuinely to carry out the investigation or prosecution” the situation becomes admissible to the International Criminal Court . This arrangement is generally referred to as the complementarity principle.

In order to efficiently guarantee the protection of the fundamental rights of the people, to prevent and punish violations, there must be enforcement mechanisms in place, thus the need for rules criminalising conduct detrimental to those rights, and eventually, to the notion of state sovereignty. However, those rules as set out in international criminal law do not arise nor exist in a vacuum, but necessitate continuous normative discourse between different regimes and paradigms of nation states and international community.

Sovereignty and International Law

Professor Masahiro Miyoshi
Aichi University, Japan

Despite occasional claims for a fade-out of the Westphalian concept of State sovereignty, the international community does in fact continue to depend on it. The Marxist doctrine once predicted the fate of the concept, but developing countries, while adopting Marxist teachings in their criticism of the traditional international legal institutions, have tended to reinforce their sense of sovereignty in their dealings with the established international order.

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

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

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

3). In so far as international boundaries exist as a matter of fact, they may be disputed between the States concerned, as history abundantly shows. In the foreseeable future, therefore, boundary disputes, especially maritime boundary disputes, could inevitably arise or emerge if and when natural resources are involved in the boundary areas.

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Towards a Framework for the 'Fairer' International Law on Territorial Disputes and Historical Critisicm Approach

Professor Seokwoo Lee
INHA University, Korea

The notable decisions and awards by international judicial and arbitral bodies for formulating the relevant international law relating to territorial acquisition and loss are Islands of Palmas Arbitration, Clipperton Island Arbitration, Legal Status of Eastern Greenland Case, Minquiers and Ecrehos Case, Western Sahara, Case concerning the Land, Island and Maritime Frontier Dispute (El Salvador v. Honduras Case), Eritrea-Yemen Arbitration, Case concerning Kasikili/Sedudu Island, Case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Land and Maritime Boundary between Cameroon and Nigeria, Sovereignty over Pulau Ligitan and Pulau Sipadan, Frontier Dispute (Benin/Niger), Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge, and Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea.

This fact is significant given that the general understanding of territorial disputes in international law has been developed through decisions and awards by international judicial and arbitral bodies and these cases basically involve either colonising countries or colonised/newly independent countries. Consequently, and having regard to the fact that none of these cases parallels the situation in respect of the cases involve between colonising countries and colonised/newly independent countries. In other words, cases involve between former colonies and former imperial powers did not count as a major factor in formulating the relevant international law relating to territorial acquisition and loss. Thus, it is debatable whether the general rule of international law on territorial disputes can be applied, without modification, to the specific cases which cannot be clearly fitting into the terminologies and categories.

In the circumstances, it is imperative to clarify the relevant norms of international law and develop new norms to address the very nature of the territories in dispute. This will be the case for formulating a broad framework for the appreciation of the nature of territorial disputes.

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