Journal of International Relations and Foreign Policy

June 2014, Vol. 2, No. 2, pp. 147-165

ISSN: 2333-5866 (Print), 2333-5874 (Online)
Copyright © The Author(s). 2014. All Rights Reserved.
Published by American Research Institute for Policy Development

Sovereignty in the Modern Context: How Far Have We Come?

Girik Bhalla1 and Sameeksha Chowla2

Abstract

The present article, through doctrinal research, traces the evolution of the concept
of sovereignty from being ‘rule of the monarch’ to ‘rule of law’ and from ‘absolute
sovereignty’ to ‘relative sovereignty.’ Such a change can be attributed to various
factors such as globalism, interdependence and co-operation between nation-states,
the United Nations, international criminal jurisdiction, rules of warfare and
weaponry, human rights, democracy and minority groups, which have been
examined herein. Finally, the effort concludes by evaluating the concept of modern
sovereignty.

Keywords: Absolute sovereignty, relative sovereignty, power, United Nations,

globalization, world politics

1. Introduction

The English term, sovereignty, which permeates the language of law and
politics, is derived from the French term souverain, who is ascertained to be “a
supreme ruler not accountable to anyone, except perhaps to God”.

Further, it has been iterated time and again that international law is based on
the principle of sovereignty, that sovereignty is the most important if not the only
structural principle of international law that shapes the content of nearly all rules of
international law, that the international legal order is merely an expression of the
uniform principle of external sovereignty, that sovereignty is the criterion for
membership in the international society, and that sovereignty in sum is the
‘cornerstone of international law’ and the ‘controlling principle of world order.’
1 Student, Ba Llb (Hons.), Amity Law School, Delhi (Affiliated To Ggsip University), India. Phone:
09810190097, Email: girik.bhalla@gmail.com
2 Student, Ba Llb (Hons.), Amity Law School, Delhi (Affiliated To Ggsip University), India. Phone:

09891414747, Email: sameeksha.chowla@gmail.com

148 Journal of International Relations and Foreign Policy, Vol. 2(2), June 2014

However, in the same vein it has been opined that there exists perhaps no
conception, the meaning of which is more controversial than that of sovereignty. It is
an undisputable fact that this conception, from the moment when it was introduced
into political science until the present day, had never had a meaning which was
universally agreed upon (L.Oppenheim, 1992) as sovereignty may mean different
things to different people living in different cultures, throughout different periods
(historically and contemporaneously), who practice (and practiced) different
specialized or professional competences (Reisman, Sovereignty and Human Rights in
Contemporary International Law, 1990).

Krasner (Kranser, 2000) identifies the following four ways in which the term
sovereignty is commonly used:

• Domestic sovereignty, which refers to the organisation of political authority

within a state and the level of control enjoyed by a state.
• Interdependence sovereignty, which is concerned with the question of control,
for example, the ability of a state to control movements across its own borders.
• International legal sovereignty, which is concerned with establishing the status of
a political entity in the international system. The state is treated at the
international level similarly to the individual at the national level. 

• Westphalian sovereignty, which is understood as an institutional arrangement for
organising political life and is based on two principles, namely territoriality and
the exclusion of external factors from domestic structures of authority.
Westphalian sovereignty is violated when external factors influence or determine
the domestic authority structures. This form of sovereignty can be compromised
through intervention as well as through invitation, when a state voluntarily
subjects internal authority structures to external constraints.

Thus, on an analysis of the innumerous researches conducted ever since the

mentioning of this concept, it can be deciphered that Sovereignty may refer to:


• Sovereignty as a personalized monarch (real or ritualized);


• Sovereignty as a symbol for absolute, unlimited control or power;
• Sovereignty as a symbol of political legitimacy;
• Sovereignty as a symbol of political authority;
• Sovereignty as a symbol of self-determined, national independence;
• Sovereignty as a symbol of governance and constitutional order;
Bhalla & Chowla 149

• Sovereignty as a criterion of jurisprudential validation of all law (‘grundnorm’,

rule of recognition, sovereign);

• Sovereignty as a symbol of the juridical personality of Sovereign Equality;
• Sovereignty as a symbol of recognition;
• Sovereignty as a formal unit of legal system;

• Sovereignty as a symbol of powers, immunities, or privileges;
• Sovereignty as a symbol of jurisdictional competence to make and/or apply law;
and
• Sovereignty as a symbol of basic governance competencies (constitutive process)
(Nagan & Hammer, The Changing Character of Sovereignty in International Law
and International Relations, 2004).

Although it is not possible to formulate an all-inclusive definition of

sovereignty, two major points of view with regard to the concept of sovereignty can
continuously be identified. The first view is that sovereignty means absolute power
above the law and that absolute sovereignty constitutes one of the most powerful and
inviolable principles in international law (Ninčić, 1970). The second view is that it is
of utmost significance that states – as the most important subjects of international law
– do not claim that they are above the law or that international law does not bind
them (Bodely, 1999). This leads to the dual aspect of sovereignty, which is inclusive of
the concept of both internal and external sovereignty. Internal sovereignty may be
described as the competence and authority to exercise the function of a state within
national borders and to regulate internal affairs freely. Internal sovereignty thus
comprises of the whole body of rights and attributes that a state possesses in its
territory. External sovereignty is traditionally understood as legal independence from
all foreign powers, and as impermeability, thus protecting the state's territory against
all outside interference (B. Fassbender, 2003).

2. Transformation in the Concept of Sovereignty

According to the classical notion of sovereignty the right to engage in war is

seen as one of the key elements of sovereignty and no binding legal rules obliging
states to keep the peace are accepted. Nevertheless, the concept of sovereignty is
neither “natural” nor static.
150 Journal of International Relations and Foreign Policy, Vol. 2(2), June 2014

Because of a process that has increasingly placed constraints on the freedom

of action of states, the substance of the notion of sovereignty has changed and will
further change in future (B. Fassbender, 2003).

The hold of the classic regime of sovereignty was dislodged within the
boundaries of nation-states by successive waves of democratization (Potter,
Goldblatt, Kiloh, & Lewis, 1997). While these were primarily aimed at reshaping the
national polity, they had spillover effects for the interstate system (Bull, 2002).

Further, since the beginning of the twentieth century it has become

increasingly apparent that the classical approach to sovereignty as absolute and
unlimited authority constitutes a threat to international peace and to the existence of
independent nation states. In todays world, too much sovereignty is inherently a bad
policy option. When a state in this era opts for absolute sovereignty, it will suffer from
isolation and economic deprivation. Indeed, if sovereignty is the responsibility of a
state to cater to the well-being of its nationals, then interdependence and international
integration is the best course of action if doing so secures such an outcome.

Thus, the cardinal question was asked whether a sovereign state, with no
authority above it, can be bound by international law especially in light of the
prevalent dualistic approach to international and municipal law. However, as a result
of the horrors of war, anti-sovereign doctrines emerged that tended to replace the
dualist doctrine which placed emphasis on the will of states, with a monistic approach
that sought to establish a common source for international and national law. Some of
the most important authors of the monistic school of thought include Krabbe, Duguit
and Kelsen.

According to Krabbe, national and international law have essentially the same
quality and are above state rule. However, because international law is the law of the
larger community, it takes precedence over national law. He envisages the eventual
establishment of a so-called world state which is founded upon popular
representation and is able to enforce a world-wide sense of right.

The development of such an absolutist world state may finally result in the
disappearance of individual states or the degrading of these states to mere executors
of the aims of the universal community (Krabbe, 1906).
Bhalla & Chowla 151

Duguit states that the concept of sovereignty is in the process of

disintegration insofar as the idea of public service increasingly forms the foundation
of modern state theory. He describes public service as those activities that the
government is bound to perform.

These activities display an internal as well as an external (international)

character as the result of the interdependence between states. The recognition of
individual rights simultaneously determines both the direction and the limit of public
activity. It thus constitutes the source of all rules regulating the relationship between
individuals and the state (Duguit, 1921).

Kelsen identifies a certain hierarchy of norms, at the top of which the norms
of international law can be found. According to him there are two possible
‘grundnorms’ in the international sphere, namely the supremacy of the municipal
system or the supremacy of international law. By emphasizing the supremacy of
international law, Kelsen foresees the eradication of the borderline between
international and national law, the creation of a universal legal community and the
eventual emergence of a world state (Kelsen, 2009).

As a result of the changing thought procedure, the principle of absolute

sovereignty is thus replaced by a concept of relative sovereignty, where the freedom
of each state is limited by the freedom of other states and the independence of a state
is subjected to international law. Therefore it came about that sovereignty might to a
certain extent be subordinated to international law. The sovereignty of one state,
however, cannot be subordinate to that of another state because sovereignties are, by
their very essence, equal. A consequence of this is that the concept of sovereignty
tends to merge increasingly with the concept of independence. However, the
independence of a state is not absolute. It is limited by the equal freedom and
independence of other states as well as by international conventions and specific
agreements entered into by states (Ninčić, 1970).

3. Phases Depicting Changes in Concept of Sovereignty

The Treaty of Westphalia marks the first phase in the development of the
modern notions of sovereignty. Interpretations of this document led to the
establishment of the modern system of nation-states, in which the sovereign reigned
supreme domestically, as well as in its relations with other states.
152 Journal of International Relations and Foreign Policy, Vol. 2(2), June 2014

In this regard, the monarch who gives the law is considered to be above the
edicts of his own commands (Bodin, 1962).

The second phase in the development of the principle of sovereignty was

ushered in by World War II and its conclusion in 1945. In this phase, the absolute
power claimed by sovereign states came tête-à-tête with the creation of the United
Nations Organization and various Inter-governmental bodies that espoused the idea
of collective actions and state accountability to an international community. The
creation of these state-consented supranational organizations was geared toward
predictability in the international system to potentially forestall another war on the
global stage. Here, states move away from absolute rule and begin to share some of its
functions with institutions above and below the national level (Cohan, 2006) and
when states undertake actions to cooperate with each other for mutual benefits, they
cede some of their authorities in those areas on decisions that are dictated by such
supranational bodies.

Following World War II, there was a proliferation of international

organizations, which included various inter-governmental organizations, such as the
United Nations, the International Court of Justice (ICJ), the International Monetary
Fund, the European Human Rights Convention, and the European Union. These
cooperative international institutions were put into place to harmonize both economic
and non-economic agendas of the world community. As a result of the overwhelming
numbers of these institutions, the international system has now become a “tightly
woven fabric of international agreements, organizations and institutions that shape
states' relations with one another and penetrate deeply into their internal economics
and politics.” (Chayes & Chayes, 1998)
The next phase of the development of state sovereignty is rooted in the wave
of democratization that swept the world after the collapse of the Soviet Union and
subsequent end to the Cold War, which saw an end to dictatorships around the world
akin to the political order in the USSR.

The challenges posed by ordinary citizens to absolute dictators, who could no

longer count on their patrons for protection, saw the demands for democratic
institutions, values, and practices necessary to make their government more attuned to
their needs. In this phase, there was a renaissance of the idea of sovereignty as
something that emanated from the people, rather than being something inherent in
the state (Reisman, Coercion and Self Determination: Construing Article 2(4), 1984).
Bhalla & Chowla 153

Another phenomenon that has led to the erosion of sovereignty is

globalization. Generally speaking, globalization is the intensive interaction between
people and economic entities due to the ever-decreasing costs and time-efficient
means of moving goods and services between the communities of the world. It also
entails the increasing ability of people across the world to communicate with each
other. The spectacular ease with which information is collected and disseminated
across borders has curtailed the ability of authoritarian states to control the flow of
communication in and out of the state, hence the kind of information their citizens
receive. In another way, the communication revolution has worked to enhance the
interdependence of sovereignty by giving the state a greater capacity to keep tabs on
those within its borders by deploying surveillance technologies (Kelleh, 2012).

Thus it can be seen that the ideas inherent in sovereignty have changed over
time in phases and continue to do so up to today and will continue to be reevaluated
in light of new challenges and opportunities faced by individual states and the
collective of states at the international level.

4. Influential Factors

The various determinants, which have played a vital role in bringing the
concept of sovereignty to its current state, have been enumerated as under.

4.1. Sovereignty and Interdependence and Co-Operation between Nation-States

Even though the traditional understanding of sovereignty still primarily

focuses on independence, the definition of sovereignty as an absolute concept of
unlimited freedom and authority is questioned.

States have come to realise that there exists a need for co-operation in order
to achieve the advancement of community goals and that all members of the
international community must take into account the valid interests of the other
members when exercising their sovereignty (Martinez & Magdalena, 1996).

States can no longer act completely independently of each other, as there

remain increasingly few aspects of life which are not dependent on, or do not respond
to, activities outside the state’s boundaries.
154 Journal of International Relations and Foreign Policy, Vol. 2(2), June 2014

This tendency directly challenges the traditional understanding of sovereignty

as supreme authority and independence. Although the majority of scholars of
international law are still of the opinion that international law is founded on the will
of states, they contend that it must be submitted to some restraint. This restraint may
be found in the conception of international society. The individual state cannot exist
in isolation and therefore the relationship between states is one of independence
(Kooijmans, 1964).

The growing idea of co-operation and interdependence between states

necessitates the existence of an international community of states. It has also been
stated that the principle of absolute sovereignty is a mere fiction that came to be
recognised as the foundation of modern relations theory and practically sovereignty
has always been limited by the realities of power and that states have never enjoyed
entire independence from each other, nevertheless if sovereignty ever existed in its
absolutist sense (which it probably did not), both doctrinally and practically it is
waning in the twentieth century (Nagan & Hammer, The Changing Character of
Sovereignty in International Law and International Relations, 2004).

4.2. Sovereignty and Globalism

Today, sovereignty confronts the challenge of globalism (Nagan, Lawyer

Roles, Identity and Professional Responsibility in an Age of Globalism, 2001). It is
commonly held that the conditions which support globalism, such as technological
advances, the communications revolution, advances in business organization, political
activism, terrorism, and organized crime conspire to undermine territorial boundaries
and permit the exchange of science, culture, political economy, and the growth of
beneficent and malevolent global civil society. This does not mean the demise of
sovereignty: it means change. Sovereignty may indeed be strengthened as it changes to
meet new needs and opportunities. In other ways, sovereignty may be limited in its
capacity to deny international responsibilities and domestic obligations.

An analysis of the world social process yields a vast number of participants

and institutions that comprise the global community. Among these are State
sovereigns, international and regional organizations, political parties, business groups,
pressure groups, NGOs, and individuals in various roles relevant to social relations
within and across State and national lines and leaving their own impressions on
sovereignty (McDougal & Lasswell, 1959).
Bhalla & Chowla 155

Further, globalization, which is a product or result of historical or social

processes, has been bringing about to the transformation of the classical version of
nation state. In this framework new concepts like the post sovereign state/period or
shared sovereignty have come up for replacing the understanding of sovereign state.
During the globalization process states have been sharing some of classical authorities
of sovereignty with supra and sub-nation units. The new concept of so called
governance has taken the nation state from being the single determining factor in its
own boundaries. The nation state is still an important actor, but it has given up the
sovereignty, which meant earlier on to be the highest, comprehensive, unlimited and
unshared authority. The state of the new period constitutes a part of the new structure
in which much wider and multilateral platforms take place compared to the old one
(Scholte, 2005). The classical sovereignty of the nation state has been transformed in
extent that the power is used by sharing in a framework in which the levels of
regional, local and global take place (Duman & Seyrek, 2011).

Thus, the process of globalization has made that certain arguments in three
main areas and the applications based on this have been inevitable for the modern
state. Firstly, the spreading of the concept of the universal human right has brought
some limitations to the sovereignty of nation sate in the area of law. Secondly, the
idea of free market has come forward in the economic field, and the intervention of
the nation state has been restricted in this area. And lastly, the idea of liberal
democracy has expanded quickly. The process of democratization has become an
important part of the agenda in most countries of the world; the democratic
management has been regarded as the universal standard of civilization and has
become a normative necessity.

Thus, it needs to be remembered that we have been living in an order in

which the nation states have been reformed according to the changes created by
globalization, but not in world which is centered with the modern state in classical
meaning (Machiavcelli, 1998).

4.3. Sovereignty and the United Nations

It is perhaps a paradox that sovereign independence is now often

accompanied by sovereign membership in various regional associations and
international organizations, which juridically limits sovereignty.
156 Journal of International Relations and Foreign Policy, Vol. 2(2), June 2014

For example, membership in the United Nations conditions sovereignty; in

other words, sovereignty cannot trump the obligations and international
responsibilities of the UN. Even more striking are State claims to associate with
supranational regional compacts and, in so doing, relinquish some autonomy in
exchange for the benefits of membership. Examples of this include the European
Union, the African Union, and the Organization of American States. The most
prominent amongst such institutions is definitively the United Nations.

The Charter does not define sovereignty. The first words in the Preamble of
the Charter introduces key terms: ‘We the Peoples of the United Nations determined.’
The references to ‘Peoples’ and nations’ when coupled with the term ‘determined’
suggest that the people of the world are the ultimate source of international authority;
moreover, the people have ‘determined’ or made an affirmative decision, to adopt a
Charter of the UN because of certain problems and conditions of global salience. The
member States comprising the UN are sovereign; the idea that sovereign legitimacy
and authority under the Charter is derived from the Peoples ultimately assumes that in
the international community, sovereign national authority is itself in some degree
constrained by the authority of the people it seeks to symbolize or represent. Further,
the demands of ‘the Peoples’ are expressed in four fundamental principles on which
the UN is premised: war prevention and security; protection of human rights and
dignity; respect for social progresses according to the rule of law; and higher living
standards and development, with the goal being global socio-economic equity. The
Preamble and Chapter I of the Charter spell out the scope (including the outer limits)
of international concern and the limitations on sovereignty.

Article 2(7) comes closest to defining sovereignty by indicating that the UN is

not authorized to intervene in matters essentially within the domestic jurisdiction of
any State. This article could as well be read in light of Article 2(4), which prohibits the
threat or use of force to attack the ‘territorial integrity or political independence of
any State.’ Among the specific restrictions on State sovereignty in Article 2 are that
States are subject to a good faith obligation to honor charter values and that they
must settle disputes by peaceful methods (U.N. Charter art. 1, para. 2, 3). A further
criterion that strengthens the principle that the UN Charter is a sovereignty-
dominated instrument is found in the membership provisions of Chapter II. Article
3(1) States that the original members of the UN ‘shall be States.’ Article 4 States that
membership in the UN is open to ‘all other peace loving States which accept the
obligations contained in the ‘Charter.’
Bhalla & Chowla 157

Although membership in the UN is exclusively a matter of State sovereignty,

an institutional set of limits is imposed: the State must be ‘peace-loving’ and accept all
charter obligations and accept the obligations of international law as developed under
the Charter. Although Article 6 may be exercised in highly unusual or exceptional
cases, it does stipulate that a State may be expelled from the UN if it is a persistent
violator of the UN Charter. Thus, the Charter supports and seeks to protect and
advance a particular form of good governance-oriented sovereignty. It also seeks to
discourage other forms of sovereignty associated with State absolutism, which seeks
to position sovereignty above Charter obligations.

There are, of course, other UN Charter limits on sovereignty that emerge

from the creation of the institutions of decision-making that comprise the UN. For
example, Chapter IV, which outlines the composition and workings of the General
Assembly, gives the Assembly the power to highlight any issue and mobilize
Assembly opinion by making it a matter for international discussion and elaboration.
Specifically, the General Assembly States that under Article 10, it may discuss any
matter within the scope of the ‘Charter.’ (U.N. Charter art. 10) In addition, the
Assembly has the power to initiate studies and make recommendations; this
promotional Assembly function may have expectation-creating communicative
properties. Assembly recommendations may even be a form of soft international law
making that might be binding on sovereign States in limited circumstances (U.N.
Charter art. 13).

The powers of the UN Security Council confer special security related

competences upon certain member States.

The five permanent members exercise what some scholars deem to be super
sovereign powers. The five permanent members have the special power of the veto in
the Council. Other elected members have extra powers by virtue of membership in
the Council, but do not exercise veto competence. The importance of these powers
cannot be gainsaid; the Security Council is given the primary global responsibility for
peace and security (U.N. Charter art. 24, 41, 42) and has the competence to enforce
its decision pacifically (Chapter VI) or by the use of force (Chapter VII) (U.N. Charter
art. 42). It has the competence to determine whether there exists any threat to the
peace, breach of the peace, or act of aggression (U.N. Charter art. 39).
158 Journal of International Relations and Foreign Policy, Vol. 2(2), June 2014

Thus, by joining the United Nations, member states willingly surrendered

aspects of their national sovereignty. For example, they consented to submit decisions
relating to international peace and security to the UN Security Council, thereby
limiting their ability to use force. Additionally, UN Security Council decisions are
binding on members states. The International Court of Justice similarly champions
the importance of international rules over domestic rules. An excellent example of
this is in an Advisory Opinion issued on April 26, 1988, in which the Court asserted
that "the fundamental principle of international law that it prevails over domestic
law." Ultimately, the court accepted that tacit in a State’s membership in the
international community is a clear limitation on its sovereignty (Applicability of the
Obligation to Arbitrate under Section 21 of the United Nations Headquarters
Agreement of 26 June 1947, 1988 ICJ REP. 12, 34, para. 57 (Advisory Opinion of
Apr. 26)).

4.4. Sovereignty and Universalizing International Criminal Jurisdiction

One of the most important outcomes of the conflict of World War II

(including the concept of total war and the idea that the State can exterminate,
enslave, or otherwise brutalize human beings it regards as ‘others and inferiors’ even if
these people were citizens of the State or citizens of States subject to belligerent
occupancy) was the principle that the aggressor State abused its sovereignty and its
leaders could be accountable directly to the international community for criminal
conduct. The principle established was a challenge to the scope of sovereignty, which
was inherited from the (pre- WWII) past. These changed were, in fact, revolutionary
from an international law/international relations point of view.

They were major changes in the international constitutional system, not only
as limitations on sovereignty, but also by making individual State officials directly
accountable, they created the principle that individuals have rights and obligations
directly under international law.

The Nuremberg Charter and subsequent trials provided a serious limitation on

the absolutist idea of sovereignty. Nazi absolutism could not provide a defense for
Nazi leaders responsible for war crimes. This Nuremberg process and the growth of
human rights changed the concept, if not the foundations of sovereignty, under the
Charter system.
Bhalla & Chowla 159

Moreover, it is currently strongly asserted that States as sovereigns have no

competence to commit acts of aggression, transgress the Geneva Conventions, and its
protocols or violate basic fundamental human rights. Nuremberg Tribunal held that
States and sovereigns are abstractions and established the principle that State officials
and leaders could be tried for criminal offenses under international law. They could be
apprehended according to the principle of universal jurisdiction and tried for
territorial and extra-territorial offenses against international law and breaches of
fundamental moral decency. Ultimately, they could be convicted and executed
(Reisman, Sovereignty and Human Rights in Contemporary International Law, 1990).
Thus in the aftermath of the above and more, came the prospects for creation
of an International Criminal Court and thus the Rome Statute entered into force on
July 1, 2002 (United Nations, 1998). This development was mainly inspired by a new
international alignment of progressive States; they are the so-called ‘like-minded’
group of States actors. Super power support for these developments remained
lukewarm or in some instances hostile. At the same time, smaller States that had much
to gain from a working international rule of law concept including the protections of
their political independence and territorial sovereignty given by law began exercising
jurisdiction within their domestic legal processes over criminal conduct by foreign
leaders deemed to be subject to universal jurisdiction. The Preamble to the Rome
Statute of the International Criminal Court affirms that the ‘most serious crimes’ are
of concern to the international community and as a whole must not go unpunished.
The Preamble also indicates that the international community is determined to put an
end to impunity. The central problem behind the crimes prosecuted in the Rome
Statute is that these are crimes essentially against the people, or against the sovereignty
established by the people.
Indeed, the crimes enumerated in the Rome Statute are designed to protect
sovereignty, which is understood to be rooted in the will of the people. In other
words, universal jurisdiction, in its conceptual and normative design, is an instrument
for the protection of sovereignty, which is based on the human and humanitarian
rights of people.

Thus, it can easily be concluded that in contemporary international law,

sovereignty does not draw its essential validity exclusively from the barrel of the gun.
It draws both its power and its essential legitimacy from the bottom, from the people
(Reisman, Sovereignty and Human Rights in Contemporary International Law, 1990).
160 Journal of International Relations and Foreign Policy, Vol. 2(2), June 2014

4.5. Sovereignty and Rules of Warfare and Weaponry

The formation of the rules of warfare has been based on the presupposition
that, while war cannot be completely abolished, some of its most appalling
consequences, for soldiers and citizens alike, should be made illegal. The aim of these
rules is to limit conduct during war to minimum standards of civilized behavior that
will be upheld by all parties to an armed conflict. The rules of warfare form an
evolving framework of regulations seeking to restrain the conduct of parties to an
international armed conflict. The rules are premised on the “dual notion that the
adverse effects of war should be alleviated as much as possible (given military
necessities), and that the freedom of the parties to resort to methods and means of
warfare is not unlimited.” These guiding orientations and the agreements to which
they have given rise mark, in principle, a significant change over time in the legal
direction of the modern state; for they challenge the principle of military autonomy
and question national sovereignty at one of its most delicate points – the relation
between the military and the state (what it is that each can legitimately ask of the
other) and the capacity of both to pursue their objectives irrespective of the
consequences.
Conventions on the conduct of war have been complemented by a series of
agreements on the use of different types of weapons and also agencies for arms
control and disarmament (or sections within foreign ministries) now exist within all
the world’s major states, managing what has become a continuous diplomatic and
regulatory process (McGrew, Goldblatt, & Perraton , 2003). While the rules of
warfare are, of course, often violated, they have served in the past to provide a brake
on some of the more indiscriminate acts of violence. Accordingly, it is not
unreasonable to claim that the international laws of war and weapons control have
shaped and helped nurture a global infrastructure of conflict and armaments
regulation (McGrew, Goldblatt, & Perraton , 2003) and thus halted the absolute
freedom of the sovereign states to resort to all means possible in times of a war.

4.6. Sovereignty and Human Rights, Democracy and Minority Groups

At the heart of this shift is the human rights regime. three interrelated features
of the regime are worth dwelling on: (1) the constitutive human rights agreements; (2)
the role of self- determination and the democratic principle that were central to the
framework of decolonization; and (3) the recent recognition of the rights of minority
groups.
Bhalla & Chowla 161

On (1): The human rights regime consists of overlapping global, regional, and
national conventions and institutions. At the global level, human rights are firmly
entrenched in the International Bill of Human Rights, the building blocks of which
are the UN Declaration of Human Rights of 1948 and the Covenants on Civil and
Political Rights, and on Economic, Social and Cultural Rights. As important in
promoting human rights, if not more so, have been the multiplicity of political and
international nongovernmental organizations (INGOs) that have actively sought to
implement these agreements and, thereby, to reshape the ordering principles of public
life.

On (2): There is a notable tendency in human rights agreements to entrench

the notion that a legitimate state must be a state that upholds certain core democratic
values. For instance, in Article 21 the Universal Declaration of Human Rights asserts
the democratic principle along with enumerated rights as a common standard of
achievement for all peoples and nations. Similarly, the 1966 UN International
Covenant on Civil and Political Rights elaborates this principle in Article 25. Such
commitments signal a new approach to the concept of legitimate political power in
international law.

On (3): Since 1989 the intensification of interethnic conflict has created an

urgent sense that specific minorities need protection (renewing concerns voiced
clearly during the interwar period). In 1992 the United Nations General Assembly
adopted a Declaration on the Rights of Persons Belonging to National, Ethnic,
Religious and Linguistic Minorities. Proclaiming that states “shall protect the existence
and national, cultural, religious and linguistic identity of minorities,” the Declaration
sets out rights for members of minorities to be able “to participate effectively in
cultural, religious, social and public life.”

Such changes in human rights law have placed individuals, governments, and
non governmental organizations under new systems of legal regulation that in
principle, is indifferent to state boundaries. This development is a significant indicator
of the distance that has been traveled from the classic, state-centric conception of
sovereignty to what amounts to a new formulation for the delimitation of political
power on a global basis.
162 Journal of International Relations and Foreign Policy, Vol. 2(2), June 2014

The regime of liberal international sovereignty entrenches powers and

constraints, and rights and duties, in international law that – albeit ultimately
formulated by states – go beyond the traditional conception of the proper scope and
boundaries of states, and can come into conflict, and sometimes contradiction, with
national laws. Within this framework, states may forfeit claims to sovereignty if they
violate the standards and values embedded in the liberal international order; and such
violations become a breach of a legal code, a breach that may call forth the means to
challenge, prosecute, and rectify it.

Thus, 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 (Falk, 2000).

5. Conclusion

Although sovereignty is, therefore, often conceived as absolute, it is clear that

state sovereignty is in the process of evolving from an absolute concept of unlimited
freedom and independence to a relative concept where the freedom and
independence of states are limited both by the freedom of other states and by
international law. Because it is increasingly recognised that there are certain communal
interests that cannot be addressed independently, a growing trend of co-operation and
interdependence are developing between states. The present international legal order
aims to regulate social life on all levels of governance. Sovereignty can no longer be
understood in terms of the categories of untrammeled effective power.

Rather, a legitimate state must increasingly be understood through the

language of democracy and human rights. Legitimate authority has become linked, in
moral and legal terms, with the maintenance of human rights values and democratic
standards.

Several major difficulties remain, nonetheless, at the core of the liberal

international regime of sovereignty that create tensions, if not faultiness, at its center.
While the liberal political order has gone some way toward taming the arrogance of
princes and princesses and curbing some of their worst excesses within and outside
their territories, the spreading hold of the regime of liberal international sovereignty
has compounded the risks of arrogance in certain respects.
Bhalla & Chowla 163

This is so because in the transition from prince to prime minister or president,

from unelected governors to elected governors, from the aristocratic few to the
democratic many, political arrogance has been reinforced by the claim of the political
elites to derive their support from that most virtuous source of power – the demos.
Democratic princes can energetically pursue public policies – whether in security,
trade, technology, or welfare – because they feel, and to a degree are, mandated so to
do. Further, while many pressing policy issues, from the regulation of financial
markets to the management of genetic engineering, create challenges that transcend
borders and generate new transnational constituencies, existing intergovernmental
organizations are insufficient to resolve these – and resolve them legitimately.
Decision- making in leading IGOs, for instance the World Trade Organization
(WTO) and the International Monetary Fund (IMF), is often skewed to dominant
geopolitical and geo-economic interests whose primary objective is to ensure flexible
adjustment in and to the international economy. Additionally, serious deficiencies can,
of course, be documented in the implementation and enforcement of democratic and
human rights, and of international law more generally. Despite the development and
consolidation of the regime of liberal international sovereignty, massive inequalities of
power and economic resources continue to grow. There is an accelerating gap
between rich and poor states as well as between peoples in the global economy.
Hence, it is hardly a surprise that liberal democracy and flourishing economic
inequalities exist side by side (United Nations, 1998).

But there also exists a positive side to the current face of modern sovereignty,
within the wider international community, rules governing war, weapon systems, war
crimes, human rights, and the environment, among other areas, have transformed and
delimited the order of states, embedding national polities in new forms and layers of
accountability and governance. States are no longer regarded as discrete political
worlds.

Nonetheless, in a changing world, where sovereign states must adapt in order

to remain relevant, we will continue to reinterpret and redefine what it means for a
state to be sovereign in an increasingly interdependent and dynamic world. In such a
world, the very idea of an independent state is an oxymoron: it is perhaps more
accurate to describe a state as interdependent. As we move away from the idea of the
ruler as the ultimate source of sovereignty to the ruled, this helps to ensure a more
people-oriented definition of sovereignty.
164 Journal of International Relations and Foreign Policy, Vol. 2(2), June 2014

In this paradigm, the idea of state sovereignty as a responsibility toward the

betterment of citizens does not seem at all strange.

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