TABLE OF CONTENTS

CERTIFICATE OF GUIDE .............................................. Error! Bookmark not defined.

CERTIFICATE OF STUDENT.......................................... Error! Bookmark not defined.

ACKNOWLEDGEMENT ................................................. Error! Bookmark not defined.

INDEX OF AUTHORITIES .............................................................................................. iii

1. Introduction .............................................................................................................. 1

2. The Concept Of Sovereignty And Jurisdiction In Public International Law .... 3

2.1 The Context And Meaning of Sovereignity ......................................................... 3

2.2 The Concept of Jurisdiction and Sovereignity ..................................................... 4

3. The Limiting Edges of Sovereignity: True or Not? .............................................. 7

3.1 Sovereignity and The UN Charter ....................................................................... 7

3.2 Sovereignity and Environmental Law ................................................................ 9

4. The Adoption of Principles of International Law in Different Countries ........ 11

5. Conclusion .............................................................................................................. 13

ii
 INDEX OF AUTHORITIES

Cases

Corfu Channel, ICJ Rep. (1949), p.4. .......................................................................... 15

J.H. Rayner Ltd. v. (Mining Law) Department of Trade and Industry, (1990) 2 AC
418............................................................................................................................ 19
Paquete Habana (1900) 175 U.S. 677, U.S. Melekh, (1960) 190 F. Supp.67 ............ 19
PCIJ, SS Lotus, PCIJ Reports, Series A, No. 10, 18-19 (1927). .................................. 13
Vishaka v. State of Rajasthan, AIR 1997 SC 3011...................................................... 19

Articles Referred

1. B. Graefrath, The International Law Commission Tomorrow: Improving its

Organization and methods of work, 85 Am. J. Int'l L. 595 (1991).
2. Gerald T. McLaughlin, The Codification Of International Commercial Law:
Toward A New Law, 15 Brook. J. Int'l L. 3 (1989).
3. Luis Barrionuevo Arévalo, The work of the International Law Commission in
the field of International Environmental Law, 32 B.C. Envtl. Aff. L. Rev. 493
(2005).
4. Stephen Mccaffrey, Is Codification in Decline?, 20 Hastings Int'l & Comp. L.
Rev. 639 (1997).
Books Referred

1. D J Harris, Cases and Materials on International Law, (Sweet & Maxwell,

London, 6th edition, 2004)
2. Georg Schwarzenberger, A Manuel of International Law, (Universal, New
Delhi, 5th edition, 2000)
3. Ian Brownlie, Principles of Public International Law, 28, (Oxford, London, 6th
edition, 2003)
4. Oppenheim, International Law, (Robert Jennings & Arthur Watts (Ed.)
Universal, New Delhi, 9th edition, 1996)
5. S. K. Kapoor, International Law and Human Rights, (Central Law Agency,
Allahabad, 14th edition, 2004)

iii
1. INTRODUCTION

"International Law may be defined as the body of laws which is composed for
its greater part of the principles and rules of conduct which states feel themselves
bound to observe, and therefore, do commonly observe in their relations with each
other, and which includes also:

(a) the rules of law relating to the functioning of international institutions or

organisations, their relations with each other, and their relations with states and
individuals; and

(b) certain rules of law relating to individuals and non states entities so far as the
rights or duties of such individual and non state entities are the concern of the
international community."1

Thus, international law or the law of the nations is in fact an uncodified code
of conduct which the member of the family independent nations follow in their
mutual dealings with each other. In other words, it can be defined as the set of rules
that governs the interaction of the states, citizens and international organisations.

On the other hand, the concept of 'sovereignty of the state' has also been an
important feature of the state since a long period. Thomas Hobbes in his book
Leviathan asserted that since human nature is solitary, nasty, brutish and short aiming
at self preservation there is a need of a sovereign to which we can yield our power to
control the unrestrained human behaviour.2 Over the period of time, it has acquired
both a legal and moral facet making it an indispensable feature of the modern state.

As far as the definition of sovereignty is concerned, it may be associated in a

different context by different people. It may be associated as absolute, unlimited
control or power,3 political legitimacy4, political authority5, national independence6,

1
J.G. Starke ed. I.A. Sherarer, Starke's International Law Eleventh Edition, Butterworths, New Delhi,
2011, p.14.
2
Bateman, C.G., "Nicaea and Sovereignty: Constantine’s Council as an Important Crossroad in the
Development of European State Sovereignty", University of British Columbia, at
https://ssrn.com/abstract=1759006. (last accessed on 10 October 2017).
3
Richard Falk & Andrew Strauss, ''On the Creation of a Global Peoples Assembly: Legitimacy and the
Power of Popular Sovereignty'', 36 STAN. J. INT'L L. 191, 207 (2000).
4
Ibid.
5
The Black's Law Dictionary, 1402. (7th ed. 1996).
6
Ibid.

1
governance and constitutional order jurisprudential validation of all law, juridical
personality of sovereign equality, international recognition; a formal unit of legal
system; legal immunities; jurisdictional competence to make and apply law; or as
basic governance competencies7. It is the idea of having independent control over a
geographical area.

However the concept of sovereignty is only valid if it is recognised by others.

For instance, if the divine law has conferred upon the ruler the right to rule over
people, the ruler is subject to the constraints of the divine law. Similarly, the
recognition of a state as a 'state' stands validated only on the ground that it has been
accorded recognition by other states. Moreover with ethical motivations like the
importance of human rights, environmental concerns gaining precedence across the
globe in the recent times, international law has acquired a new and an important facet.
As a result, unilateralism is being pitched against multilateralism, where the latter is
concerned with globalised issues.

Thus according to some scholars it is being argued, that this is a direct attack
at the sovereignty of the nations. In the words of A.N. Talalayev, any international
agreement is the violation of the sovereignty of the nations. It is only valid because it
does not go beyond the limits of sovereignty by the virtue of being voluntary.8 On the
contrary, it is also argued by some scholars that it helps in retaining the concept of
sovereignty by regulating relations between sovereign states and establishing a
balance between the whole international community.9

The aim of this project is to understand the changing character of sovereignty

in international law and relations. It is to determine whether international law is
actually limiting the edges of sovereignty or helping in retaining the sovereignty of
the nations.

7
Ian Brownlie, Principles of International Law, 4th ed.1990, p.287.
8
G.M.Velyaminov, "Legal Status of the Subjects of Russian Federation and Problems of Recognition.
Moscow Journal of International Law", 1995, p. 9.
9
B.L. Manelis, "Problems of Sovereignty", Resume of Ph.D. Dissertation, Moscow, 1966, p. 14.

2
2. THE CONCEPT OF SOVEREIGNTY AND JURISDICTION IN PUBLIC
INTERNATIONAL LAW

The concept of jurisdiction and sovereignty are linked to each other in Public
International Law. Before we move on to the relation between the two, it is important
to understand the concept of sovereignty.

2.1 The Context And Meaning of Sovereignity

The technique of contextual mapping is a technique related to the New Haven

School which relies on the fact of understanding the context in which the concept is
used to understand the concept. The concept of sovereignty can be explained with the
help of contextual mapping. According to this technique sovereignty is defined as an
instrument to establish and maintain authority within nation states and among nation
states.10 The context in which it is used relies on the fact that despite the four essential
characteristics of a state i.e. the territorial boundary of a state, population, internal
governance and political body in the international environment, the criteria of the
constitution of the authority also forms an essential part of the characteristics of the
state.

The constitution of authority as contradistinguished from power can only be

held valid when it has a normative element attached to it. In other words, if the
institutions through which human beings exercise power are developed in an
authoritative and effective manner i.e. as a blend of the power process and the
constitutive process, can it be held valid. To illustrate, A revolution takes place in a
community for the contestation of power. The constitution of a valid power can only
take place in an authoritative and effective manner, either resulting from a
formulation of a concrete authority from one side or based on a mutual interest11 from
both sides. e.g. The Constitution of different countries, whether codified or un-
codified are live examples of valid contestation of powers.

However, even the valid constitution of an authority will not result in an end
of conflict. It might just lead to a change in the form of conflict or lead to an effective

10
Harold Lasswell & Abraham Kaplan, Power And Society: A Framework Of Political Inquiry, (1950).
11
Harold G. Maier, "Extraterritorial Jurisdiction at a Crossroads: An Intersection Between Public and
Private International Law", 76 AM. J. INT'L L. 280 (1982).

3
conflict management procedure. Where the former might be understood to be a
situation in which the conflict turns out to be beneficial for the society at large e.g.
Economic conflicts between capitalistic nations that lead to the development of
competitive markets. On the other hand, the latter might be understood as
communications regarding management of conflicts that are either violent or non-
violent e.g. The UN Charter which has been created to facilitate decisions for the
maintenance of peace and security across the globe.12

The concept of sovereignty can be associated to the power process because it

includes claims to become sovereign, remain sovereign or realign sovereign
competence. Tracing the concept of sovereignty with contextual mapping we find at
the national level it is the recognition of the authority to make decisions within the
state and at the international level is the recognition of authority to be capable to be
understood as a separate legal personality and to exercise rights to the exclusion of
any other state.

2.2 The Concept of Jurisdiction and Sovereignity

Jurisdiction can be related to sovereignty because the right of the authority to

exercise normative power by enacting and enforcing laws forms an essential part of
components of state. Further, both the concepts of sovereignty and jurisdiction find an
important place in the concept of territory as a sovereign has jurisdiction only within
its territory. The only point of concern is that these terms cannot be always used co-
extensively.

In the classical Westphalian understanding, the concept of power was

understood as the exclusive jurisdiction to enforce laws within its territorial
boundaries. Considering the equality of states, it was understood as an enabling
concept which gave the sovereign the exclusive right to manage the legal affairs of the
individuals within its territory. However, the rise of the demarcation of territories for
the exercise of power is a modern concept. In pre-modern times, people adhered to the

12
United Nations Charter Resolution, (adopted 26 June 1945, entered into force 24 October 1945),
available at http://www.un.org/en/charter-united-nations/. (last accessed on 10 October 2017)

4
jurisdiction of those laws to which their community was a subject to.13 Thus the
territorial classification does not have a long historical support.

Similarly, in the present times also the states do not always resort to the
territorial classification of jurisdiction. The adherence to laws that are not within the
ambit of municipal law i.e. the principles of international law might be deviance from
the normal course of path impinging upon their sovereignty. But these are generally
based on the maxim of sic utere tuo ut alienum non laedas14 (use of property such as
not to damage others) depicting that exercise of sovereignty can also not be unfettered
so as to cause harm others. The exercise to sovereignty has to have limits such that it
is feasible for sovereignty to remain as a concept in near future. It is to put forth an
idea of cooperation among states for the protection of issues like human rights that are
important across the globe.

Furthermore it has also become important to adopt to these principles to solve

the problems of jurisdictions in the recent times. e.g. In the environmental field,
where it is a need to classify between jurisdictions and adhere to them as stated
hereinunder15:

Res Nullius: These are unclaimed lands which have no owner but are capable of being
brought under the ambit of territorial jurisdiction.

Res Communis and Global Commons: The areas that are shared by the sovereigns e.g.
Moon, High Seas etc. The only distinction between the two being that the latter
require permission from the international community before being exploited.

Therefore ultimately it can be said jurisdiction has elements which allow states
to participate in the matter of foreign jurisdictions, try the cases having foreign
element and to apply its municipal law to the same in some cases. This might be
considered as limiting the edges of sovereignty or not but what is important to
understand is that it is the need of the hour. Also as it has been stated in the Lotus
Case,

13
S Kassan, "Extraterritorial Jurisdiction in the Ancient World", (1935) 29 Am J Int’l L 237, 240.
14
Geert Van Calster, "International Law And Sovereignty In The Age Of Globalization", at
https://www.eolss.net/Sample-Chapters/C14/E1-36-01-04.pdf. (last accessed on 10 October, 2017)
15
Ibid.

5
 " international law governs relations between independent States. The rules of law
binding upon States therefore emanate from their own free will as expressed in
conventions or by usage generally accepted as expressing principles of law and
established in order to regulate the relations between these co-existing independent
communities or with a view to the achievement of common aims. Restrictions upon the
independence of States cannot therefore be presumed."16

16
PCIJ, SS Lotus, PCIJ Reports, Series A, No. 10, 18-19 (1927).

6
3. THE LIMITING EDGES OF SOVEREIGNITY: TRUE OR NOT?

The question therefore that is put forth in the present case is that, considering
the definition of sovereignty, whether international law results in the decline of
sovereignty of states or it helps in maintain them. The same shall be put forth through
the following considerations:

3.1 Sovereignity and The UN Charter

The UN Charter was premised on the grounds of a rebound to the League of

Nations. The constitution of League of Nations was based on the principle that any
member state could exercise a veto to protect its sovereignty in the matters of
international importance. Thus there was a need to rebut the unguided expectation of
sovereigns to exercise unrestricted power in the matters of International importance.
At the same time, it was important to understand that the measures adopted in the UN
charter were not aimed to curtail sovereignty rather to maintain sovereignty. This can
also be explained with the help of the following illustrations:

 Preamble of the UN Charter: The preamble of the UN Charter begins with

definition of 'We the people of United Nations' which states that the ultimate
authority in regard to all the international affairs rests in the people. Moreover,
the reason why the UN Charter has been adopted is to tackle the problems
concerning the entire humanity at large e.g. prevention of war, protection of
human rights, environmental protection etc. Thus it does not try to curtail
sovereignty rather tries to prove its presence in the views of the people.
 Principles of Non Intervention: Article 2(1) of the United Nations Charter
states that the, 'The Organisation is based on the principles of the sovereign
equality of all its members."17 Article 2(7) of the charter states that United
Nations shall not intervene in the matters of the domestic jurisdiction of the
states.18Furthermore Article 2(4) of the UN Charter which states the same for
the states holds that," All Members shall refrain in their international relations
from the threat or use of force against the territorial integrity or political
independence of any state, or in any other manner inconsistent with the

17
supra note 12, art. 2(1).
18
supra note 12, art. 2(7).

7
 Purposes of the United Nations."19 Since it has been expressly provided in the
charter, it cannot be assumed that the same aims at curtailing the sovereignty
of the nations.
 Membership of the UN: The united nation charter accepts nation states as
members of the organisation.20 The membership is not only restricted to the
countries that were signatory to the organisation but to all other peace loving
states which accept the provisions of the charter.21 Thus the only criteria for its
acceptance is the peace loving nature of the state and its obligation to adhere
to the provisions of the UN charter and only in the circumstances of the non
fulfilment of the same shall it be held responsible.22

In addition to this the United Nations General Assembly has also adopted the
resolutions of Declaration on Principles of International Law Concerning
Friendly Relations and Cooperation among states in accordance with the
charter of the U.N. and the Declaration on the Enhancement of the Principle of
Refraining from the Threat or use of Force in International Relations which
make it a duty of the state to adhere the principles of non-interference and
refrain from threatening other member nations.

However there are some limitations on the sovereignty of the nations but if we look at
it considerably that rather than limiting sovereignty they help in exercising it.

 Valid Grounds of Intervention: The UN charter has brought into force some of
the grounds for intervention in matters of the other nations states but these
might be considered as valid grounds of intervention considering the current
scenario prevalent in the world. e.g. Self Defence, humanitarian grounds, to
enforce treaty rights, intervention to prevent illegal intervention, balance of
power, for protection of persons and their property, intervention to maintain
international law, intervention to maintain civil wars etc.
In the famous Corfu Channel Case,23 when the British ships had removed
mines from the channel (territorial waters of Albania) and had ensured that it
was safe for the passage of ships and as a result Albania fired at some British
19
supra note 12, art. 2(4).
20
supra note 12, art. 1.
21
supra note 12, art. 7.
22
supra note 12, art. 51.
23
Corfu Channel, ICJ Rep. (1949), p.4.

8
 ships the very next month. The ICJ observed that since Albania was under an
obligation to inform Britain about the mines and it did not give any warning to
the warships it was liable for the harm caused to the warships.
 Powers of the UN Security Council: The powers of the UN security council
confers special powers to five permanent members of the UN. The powers
conferred to them may be considered to be special powers however these are
at the same time considered to be necessary for the maintenance of peace and
security across the globe. The powers still do grant at the same time some
inherent powers to the state.
Thus it can be reasonably inferred that the provisions of the United Nations
Charter have been aimed at the promotion of the sovereignty rather than
limiting them. It is furthermore an example of the accepted document that has
been positively and voluntarily adopted by most of the nations across the
globe.

3.2 Sovereignity and Environmental Law

The concept of sovereignty over natural resources was based on the concept of
territoriality which stated that the state had unlimited sovereignty over its territory.
The adoption of the resolution 1803 by the United Nations General Assembly
proclaimed that, "The right of peoples and nations to permanent sovereignty over their
natural wealth and resources," and the preamble recommended that "the sovereign
right of every state to dispose of its natural wealth and resources should be respected
[...] in accordance with their national interests."24

However with the adoption of the Rio Declaration and the Stockholm
conference it was said that sovereignty in no sense could be understood to be
exercised without restraints in matters pertaining to the environment. The reason
being that matters pertaining to environment refer to the common domain of mankind
and therefore should be ascertained judiciously. This is furthermore based on the
concept of "good neighbourliness" i.e. the states shall protect the harm of their
neighbour states and "sic utere tuo ut alienum non laeda " i.e. the use of property such
as not to damage others.

24
Birnie & Boyle (2002) 138.

9
Principle 21 of the Stockholm Declaration declares that the sovereign state has the
exclusive rights over their own environmental policies and thus they can exploit these
resources according to their own wish subject to the condition that their policies do
not affect the environment of their neighbour states. A similar notion has also been
adopted in the Principle 2 of the Rio Declaration. The principle 21 of the Stockholm
declaration is further based on the concept that the steps taken by the states shall be
preventive in nature i.e. aimed at prevention of the harm to the environment at the
first place, rather than being stipulations to undo the wrong that has already been
done.25

Therefore it can be argued that these international principles limit the exercise
of the jurisdiction of the sovereign states. However, if issues that are of the global
priority like sustainability of resources, prevention of environmental degradation,
exercise of natural resources for the benefit of all mankind are to be exercised then
sovereignty might have to limited to a certain extent. A Similar view was also taken
up by the court in the case Lac Lanoux arbitration, in which the tribunal held that
watercourses between France and Spain were shared resources of both the nations.
Therefore France has a duty to consult Spain in the matters regarding the same. 26
Thus it can be validly held that the same do not aim at the curtailment of the rights of
the sovereignty of a nation rather in a way help in promoting them.

25
Nico P. Swartz, "State Sovereignty And Environmental Law", European Journal of Business and
Social Sciences, Vol. 3, No. 8 , November 2014.
26
supra note 24.

10
4. THE ADOPTION OF PRINCIPLES OF INTERNATIONAL LAW IN

DIFFERENT COUNTRIES

The rules of the international law become binding on the sovereign states only
when they are adopted by them. The process of the adoption of the principles of
international law into the municipal law may vary from state to state. Generally there
are five theories that govern the adoption of the principles of International Law:

 Monism: The theory of monism is based on the fact that international and
national law belong to one legal system resulting in the rules being emanating
from a single source. The rules are derived from a single grundnorm and the
essential law making power vests in the international law.
 Dualism: The dualist scholars argue that municipal law and the international
law are two separate laws. They are distinct from each other and the rules of
international law do not become a part of the municipal law unless they are
ratified by them.
 Theory of Specific Adoption: The theory of specific adoption lays down that
the rules of international law should be specifically adopted within the ambit
of municipal law, thus making them a part of provisions of the law of the land.
 Transformation Theory: The transformation theory lays down that in order to
implement any international law, the same shall undergo a transformation so
as to be read in a harmonious way with the static law. Thus the consent of the
states play an important part in this theory.
 Delegation Theory: Thus delegation theory assumes that the principles of
international law cannot be followed in the state unless the same have been
delegated properly to its subordinates which makes it easy for the
implementation of the principles of the same.

It is based on these theories that international laws are adopted among different
nations.

 Britain: In Britain, customary international laws are considered to be a part of

their municipal law subject to the conditions that they should not be
inconsistent with the provisions of the municipal law. As far as treaties are
concerned they are considered to a part of the British Law only after they have

11
 been accorded a recognition by the Parliament of Britain. This view was also
taken up by the Justice Oliver in the case of International Tin Company, 27 in
which it was observed that treaties are not self executing. It does not form a
part of the English Law, unless it has been incorporated into the law by
legislation.
 USA: As far as Customary International Law is concerned, there is no
difference in the procedure adopted in the American than from the British
Practice. In the Leading case Paquete Habana28, Justice Gray observed that the
International Law is a part of our law and must be ascertained and
administered by the courts of justice of appropriate jurisdiction as often
questions of rights depending on it are duly presented for their determination."
The courts shall interpret statues in such a way that they are not in
contravention to the principles of International Law. As far as the treaties are
concerned, all the treaties entered by America shall form a part of the law of
the land.
 INDIA: Prior to the adoption of the constitution the Indian practice was
similar to the British Practice. After the adoption of the Indian Constitution, it
is based on the principle of specific adoption which states that international
law shall become a part of the municipal law after it has been specifically
adopted by the legislature. Article 5129 of the Indian Constitution aims at the
promotion of the same. In the case of any absence of the conflict between the
provisions of the domestic law and the international law and in the absence of
any domestic law, the provisions of the international law play a significant
role in deterring the legislation.30

Thus it can be said that International Law forms part of the Municipal Law by
the virtue of acceptance by the nation states.

27
J.H. Rayner Ltd. v. (Mining Law) Department of Trade and Industry, (1990) 2 AC 418.
28
Paquete Habana (1900) 175 U.S. 677, U.S. Melekh, (1960) 190 F. Supp.67.
29
The Constitution of India, 1950, art. 51.
30
Vishaka v. State of Rajasthan, AIR 1997 SC 3011.

12
5. CONCLUSION

International law or the law of the nations is in fact an unmodified code of

conduct which the member of the family independent nations follow in their mutual
dealings with each other. However with the advancement of international law, many
transnational organisations have developed over the years. The international law has
acquired a new facet which now not only governs the interaction between states but
governs the interaction of the states, citizens and international organisations. This
might be considered as a challenge to the sovereignty of the nations because these
non-state elements acquire an equal footing in the determination of international
affairs.

But if we look at it considerably, it is the existence of these states which

validates the existence of these organisations. So if it were not for the states and their
concept of sovereignty these organisations would not have existed at the first place.
Moreover it is necessary to be understood, even if international organisations exist
independently their aim is not withdrawal of the states from the principles of
sovereignty.

The states by the virtue of their consent submit to the principles of

international organisations. They adopt only those principles that are pleasing to their
own interests e.g. to establish any military facility, trade policies that are beneficial
for their own country, environmental agreements that provide access to natural
resources etc. As a result it serves a twofold purpose, it not only provides the nations
the right to access the laws in their favour but also casts an equal duty on them by
imposing certain obligations to act in the favour of other nations. Thus, bringing in a
normative element in the concept of international law and not acting as a measure
directly impinging the sovereignty of the nations. The only restrictions that it might
impose may be in the form of certain restriction on the independence of the states and
therefore cannot be termed as violations of the sovereignty of the nations.

In the words of I. D. Levin, " International law and sovereignty are not only
compatible, but are also a logically necessary correlation as they presuppose each
other." Thus it should be understood that these two concepts are to be read
harmoniously with each other.

13