McAfee SECURE sites help keep you safe from identity theft, credit card fraud, spyware, spam, viruses and online scams

The role of the doctrine of state sovereignty in the development of international law. Illustrate your essay with specific examples.

This essay will look to critically evaluate the role of the doctrine of state sovereignty in the development of international law and as to what extent the doctrine of state sovereignty is crucial to the effective operation of international relations.

The doctrine of state sovereignty concerns the political and legal idea that ultimate authority is solely encapsulated in a state free from external (international) control. However, despite the nature of the doctrine of state sovereignty, English Courts have generally stated that international law should be incorporated into our national law under the doctrine of incorporation, according to numerous decisions between 1737 and 1861 including the Barbuit's case and many other decisions decided within this period. But, in contrast, R v. Keyn was said to demonstrate that the doctrine of incorporation should be abandoned, although that was only because the court was said to have been unclear as to whether there was a clear rule of international law permitting a state to exercise jurisdiction over 'aliens' for criminal offences committed in its territorial sea; although this decision was effectively reversed by Section 3 of the Territorial Waters Jurisdiction Act 1878.

Generally, treaties under international law must be interpreted in good faith in accordance with the ordinary meaning given to the terms of the treaty in view of its object and purpose, despite the nature of the doctrine of state sovereignty. Therefore, for example, the articles of the 'Vienna Convention on the Law of Treaties' are not arranged hierarchically, but were to apply as an integrated or interdependent whole so that the basic approach most generally favoured is one which has primary regard for the textual meaning of each treaty. However, English Courts cannot interpret treaties that are not incorporated by statute into municipal law. This is because the interpretation of such treaties and decisions as to whether or not they have been complied with are matters exclusively for the Crown in its conduct of foreign relations. However, in exceptional circumstances courts may interpret a treaty if its provisions have been incorporated into, for example, a contract that may refer to a particular treaty and its terms as part of the factual background against which a particular issue is to be determined, according to the decisions in JH Rayner (Mincing Lane) Ltd v. Department of Trade & Industry and Littrell v. United States of America. Furthermore, within the scope of European Law, the European Court of Justice has reasoned, that if the EC Treaty is to create a Common Market and ever closer union among the continually increasing number of European Member States were ever to be realised, individual Member States should not look to introduce unilateral changes under the doctrine of state sovereignty and Community measures should not be made subject to the varying requirements of the national law in each Member State.

In conclusion, whilst it could be argued that the doctrine of state sovereignty plays a crucial role in the development of international law and the operation of effective international relations, if the UK and other nations were to always invoke this doctrine it would make it much more difficult for different countries to formulate effective international relations. This means the doctrines of incorporation and transformation are perhaps even more important for the development of international law and the effective operation of international relations because otherwise, for example, companies would have to adjust their business practices to operate under different legal systems that exist in different countries, so clearly it is much better when there is a community structure of international law to enhance the operation of international relations and avoid such problems. Therefore, it is in fact arguable that more is done to help international relations when a country fails to invoke the doctrine of state sovereignty than when they actually choose to use it.

Related Links
To Top