The Waning of the Sovereign State: Towards a New Paradigm for International Law? ¹

Christoph Schreuer ²

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I. Introduction: The Dominant Role of the Sovereign State

The concept of an international community made up of sovereign States is the basis of our intellectual framework for international law. A look at history, however, tells us that conceptions of world order have by no means always been shaped by the model of sovereign co-equal actors with a territorial basis. Although there are old historical precedents for relations between territorial communities on an equal footing, the imperial conceptions of Roman times and of the Middle Ages were based on entirely different ideas. They were strongly hierarchical and paralleled religious or secular concepts of subordination and dependence. Sixteen forty-eight, the year of the Peace of Westphalia, is usually given as the decisive date for the transition from the vertical imperial to the horizontal inter-State model.³ Needless to say, in historical terms this is an oversimplification. The Empire existed until 1806 and the process towards sovereign equality was gradual. It culminated with the collapse in the early twentieth century of the Austro-Hungarian and Ottoman Empires, and the displacement of the Concert of Europe as the most important international arena by an open global community of States.

Colonialism was not really a deviation from this movement. The existence of different forms of social organization in other parts of the world was a welcome excuse for European powers with colonial ambitions to deny statehood to these communities and to annex the territory inhabited by them.⁴ Decolonization consisted basically of the extension of European political structures to these communities.⁵ The sovereign State as the prototype of international actor has become the universal standard.

Contemporary international law presupposes this structure of co-equal sovereign States. The international community's constitutive set-up is dominated by it. The classical sources of international law depend on the interaction of States in the form of treaties and customary law. Diplomatic relations are conducted between States. Official arenas, like international organizations and international courts, are largely reserved to States. The protection of individual rights still depends mostly on diplomatic protection through State representatives. Central concepts of international law, like sovereignty, territorial integrity, non-intervention, self-defence or permanent sovereignty over natural resources all rely on the exclusive or dominant role of the State.⁶

Interestingly enough, the advent of participants with new ideological orientations, like the socialist States or the developing countries, has not detracted from this State-centred perspective. Despite their claims for a more progressive world order, statehood and the exclusive prerogatives attached to it have been very prominent in their programmes.

This classical model of international law as the law to be applied among sovereign States has undoubtedly served useful purposes, but it also has serious shortcomings. The concentration of authority at the level of national governments has facilitated the abuse of power. The internal exercise of power has largely been insulated from the scrutiny of the larger community by such concepts as sovereign prerogative and internal affairs. The need to protect the national community from external danger frequently serves as a justification for internal repression.⁷

The convergence of formal authority in the hands of a small central ruling elite, the government, has also contributed to an inherent instability in the international system. This concentration of official transnational contacts has created dangerous breaking points in international relations. The highly personalized nature of inter-State relations conducted by a small number of individuals creates situations where disagreements on specific issues can lead to disproportionate consequences for the respective national communities, or the international community at large.

International law has responded to these and many other problems with a rapidly growing body of substantive rules ranging from human rights issues to control over the use of military force. These prescriptions have limited the freedom of lawful action by States in detail but have left the basic structure of international law unchanged. The States have retained control over their obligations. International law has increased in volume, but has mostly remained a law that is applicable among States. Sovereignty is no longer absolute. It has been harnessed to some extent, but its core has remained intact. The volume of international regulation has not changed the basic power structures.

The obvious weakness of the traditional system has prompted a search for alternatives. A recurrent theme in this search is the projection of the State's internal organization onto the international level. However, the structures of the modern State and its legal system are not necessarily a useful model for international organization.⁸ World State or super State institutions are not the answer.⁹ They are unrealistic because they do not reflect the decentralized nature of the international community, a feature which is likely to persist in the foreseeable future. They are inadequate because centralism is not a promising recipe for social stability or a better world order. A civil war is no improvement over an international conflict. These models are also undesirable because they tend to stifle pluralism and cultural diversity. This applies not only to global systems but to regional ones as well. For instance, it is unhelpful and misleading to judge progress in the European Community by its approximation to a United States of Europe, which is usually modelled after the United States of America.

The traditional image of the international community composed of sovereign and equal States has not only displayed practical shortcomings, but has also shown weaknesses as a theoretical model. In particular, the concept of equality among States is to a large extent based on fiction. The enormous differences between participants in terms of power and wealth have created a constant tension between basic conceptions of international law and reality.

In addition, the monolithic picture of an international legal community consisting of States was never entirely accurate. International law has always accepted certain actors in addition to States, at least for certain purposes. They include the Holy See, international organizations, the International Committee of the Red Cross, Amnesty International, corporations and individuals. However, the dominant role of States has never really been questioned by these additional actors. They were either established and controlled or at least tolerated by the States.

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1 This article is a revised version of a paper presented at the Paul H. Nitze School of Advanced International Studies (SAIS) in Washington, D.C. on 21 February 1992.

2 Edward B. Burling Professor of International Law and Organization, Paul H. Nitze School of Advanced International Studies .

3 See Falk, `The Interplay of Westphalia and Charter Conceptions of International Legal Order', in R. Falk & C. Black (eds), The Future of the International Legal Order, Vol. 1 (1969) 32, 43.

4 Cf. Ginther, `Systemwandel und Theoriendynamik im Völkerrecht', in P. Feuerstein, C. Parry, Multum non Multa, Festschrift Lipstein (1980) 31, 36.

5 A good example for the clash between the classical concept of statehood and other cultural concepts of control of a society over territory is provided by the International Court of Justice's analysis in the Western Sahara case, ICJ Reports (1975) 10.

6 See Koskenniemi, `The Future of Statehood', 32 Harv. Int'l L.J. (1991) 397, 406.

7 Koskenniemi, ibid., at 397-400.

8 Falk, supra note 1, at 42.

9 See also Bleckmann, `Zur Strukturanalyse im Völkerrecht', 9 Rechtstheorie (1978) 143, 155.

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