The Erosion of Authority, how International Organizations and international treaties affects states’ sovereignty
by Muhammad Radifan Averell
In this modern era, international law has experienced several significant developments. The emergence of international conventions and agreements as well as international organizations has helped develop international law by producing legal products that regulate the respective objectives of the treaty. We can see the emergence of new international law instruments with the regime of the United Nations Convention on the Law of the Sea (hereinafter “UNCLOS”) regulating the boundaries of national maritime territories, the International Health Regulations (hereinafter “IHR”) regulating the rights and obligations in handling public health events and emergencies that may cross borders, and other treaties. However, not all of these treaties or international organizations’ regulations are strictly followed by every state. In the context of UNCLOS,several states, who are a part of the 159 original UNCLOS signatories have yet to ratify it.[1] In the context of state participation, every state certainly has a right to determine whether they want to be a member state or a party to the treaty or international organizations’ regulations. Although states have self-determination, do the existence of international treaties and international organizations limit the so-called states’ self-determination, i.e., sovereignty?
Before we discuss if international treaties limit sovereignty, we must first understand what sovereignty itself is. In the view of Jan Klabbers, derived from the Wimbledon Case, decided by the Permanent Court of International Justice in 1923, and the Lotus Case, International law governs the interactions between independent states.[2] The idea behind Klabbers’s view on international law is that it derives from the states’ own free will, or known as state’s sovereignty, or it is perceived as a more or less cohesive set of laws that apply to all states.[3] Therefore, the laws that govern states come from their own free will as expressed in conventions or usages that are generally recognized as expressing legal principles and were created to govern the interactions between these coexisting independent communities or with a view to achieving shared objectives.[4] For the purpose of further understanding regarding the concept of sovereignty, Neil MacFarlane and Natalie Sabanadzie, departing from the definition of norms proposed by Stephen Krasner, describes sovereignty is “about rights, and in this instance, the rights of states,” and it is the legitimate exclusive authority, monopolized by the state, over the territory and the people living there.[5]From the viewpoint of MacFarlane, Sabanadzie, and as an extension from Krasner, sovereignty is essentially the legitimate authority for states to freely enact their own domestic policies and laws freely without any external intervention within their own territories and towards their respective peoples.
Nevertheless, we must also understand the relationship between states’ own national laws, as an extension state’s domestic policies, and international law. The “pure theory of law” doctrine, as mainly set forth by Hans Kelsen, conceives law as a hierarchy where the constitution is superior to the law, which is superior to the ordinance, and any organ that establishes norms is superior to one that merely upholds them.[6] Quoting from W. B. Stern in his “Kelsen’s Theory of International Law”, Kelsen’s theory places international law on the very top of the pyramid of the hierarchy of laws as it governs interstate relations, i.e., international law, and that independent states’ legal order are subservient to international law.[7] International law is envisioned by Kelsen as the hypothetical fundamental standard of the legal order, with the international order and the legal orders of the individual states being conceptualized as a unitary system and that if one recognizes many legal systems, they must all be ranked in order of importance, with the international legal system being the highest.[8]
At that time, W.B. Stern, deriving from the “pure theory of law,” once wrote that the international legal order is still decentralized, where independent states are the ones who determines the norms of international law, but, in the words of Stern, “someday it will no longer be necessary that states act in the role of intermediaries between the international legal order and the individual.”[9]Since Kelsen’s Theory of International Law was published in 1936, the international legal order has further evolved that, in a sense, has proved Kelsen’s prediction to be right. Since the 2nd World War ended the international legal order has created new instruments that in a sense fulfills Kelsen’s prediction in the form of international organizations and new international treaties, i.e., the United Nations (hereinafter “UN) Treaty Series, that have overtaken some functions of states’ as the previously sole intermediary between the international legal order and the individual.
Referring back to Klabbers’ view on international law and Macfarlane and Sabanadzie’s take on sovereignty, as the law that governs the relation between states based on their own free will, it can be inferred that sovereignty is the right of any independent state and must be mutually respected (principle of nonintervention) by every other state that makes up the international community. However, the pure theory of law positions international law as the highest norm in the international legal order and as a consequence, states’ laws must be in accordance with international law, being that it is the subservient norm in Kelsen’s hierarchy of law. If states are truly free to enact any domestic policies, without concerning external influences or demands, does this make them free of the constraints set forth in international law? Thus,it comes into question that in this clash of theories, between the concept that international law is derived from states’ sovereignty and Kelsen’s view of the subservient position of states’ laws towards the international legal order, does sovereignty comes first in international law, or does it come in second.
As mentioned beforehand, in the post-World War 2 world, international organizations and new international treaties have emerged within the international legal order, as new forms of instruments. With respect to states’ sovereignty, in order to be bound to these international treaties or international organizations, states must give their consent to be bound. Their emergence is accompanied by some regimes of international law, that are strict in nature, contained within international organizations’ regulations and international treaties that are strictly followed by each member states. For the purpose of explaining the nature of some strict regimes, one can observe this in the 1994 General Agreement on Tariffs and Trade of the World Trade Organization (hereinafter “1994 GATT of the WTO”) as the “basic set of trade rules,” together with the other agreements in Annex 1A to the WTO agreement, represents the obligations of WTO members with regard to goods.[10] On the other hand, we can also observe the strict regime of the Vienna Convention for the Protection of The Ozone layer that has been described as “first convention of any kind to be signed by every country involved, taking effect in 1988 and reaching universal ratification in 2009” by the UN Ozone Secretariat.[11]
To answer the question on whether states’ sovereignty is truly subservient to international law or not, we can see a dispute pertaining the GATT 1994 in the WT/DS592 dispute, i.e., Indonesia — Measures Relating to Raw Materials, between Indonesia and the European Union (hereinafter “EU”). This dispute arises from Indonesia’s domestic policy to prohibit nickel ore export that are crucial for stainless steel manufacture, as well as a cross-sector import tariff exemption program that requires the use of domestic rather than imported commodities.[12] However, the government of Indonesia claimed that these policies were taken to develop domestic industries relating to nickel. Since the Panel was composed by the Dispute Settlement Body (hereinafter “DSB”) of the WTO, there were several key findings in the dispute, the first one being that the prohibition of nickel ore export and domestic processing requirement (hereinafter “DPR”) for all nickel ore implemented by the Indonesian Government were inconsistent with Article XI:1 because the DPR by its very nature restricted the sale of nickel ore for export.[13] The Panel was also of the opinion that because Article XI:1 also covers measures prohibiting or restricting “sale for export,” it applied to domestic regulations such as the DPR that prevent or limit the ability to sell goods for export even if they apply internally within the exporting Member.[14] The second key finding in this dispute is the failure of Indonesia to prove that the export ban was in accordance with Article XX(d) of the GATT 1994.[15] With these key findings, the panel made the decision and recommended that Indonesia changes its measures in accordance with GATT 1994 even though Indonesia’s decision to prohibit the export of nickel ore was within the scope of their sovereignty.
As to the Vienna Convention for the Protection of the Ozone Layer, it is seen as “a loose framework convention,” and it was further strengthened by the 1987 Montreal Protocol, as it is seen as a huge step forward regarding the binding requirements and its specifications.[16] Previously I have mentioned regarding the universal ratification of the Vienna Convention for the Protection of the Ozone Layer, the 1987 Montreal Protocol is also one of the rare treaties that has achieved universal ratification.[17]The Montreal Protocol itself has been amended several times beginning with the London Amendment (1990), the Copenhagen Amendment (1992), the Montreal Amendment (1997), the Beijing Amendment (1999), and the most recent Kigali Amendment (2016). The Vienna Convention for the Protection of the Ozone Layer and its derivative regulations, i.e., the Montreal Protocol and its amendments, are one of the rare instances where a treaty has achieved universal ratification. From the number of ratifications that this convention and its derivative regulations, it can be inferred that the Vienna Convention for the Protection of the Ozone Layer is a strict regime of international law where all signatory states have signed each derivative treaties made.
Not every international treaty and international organizations’ regulations can be considered as strict in nature, however there are some instances where regulations are strictly followed from the beginning until the end. The existence of these strict regimes of international law are due to the interest of the regulations’ purpose itself. In the case of the GATT 1994, it is considered as a strict regime because regulations regarding international trade is of the utmost important seeing that it directly affects states’ economy. On the other hand, the Vienna Convention for the Protection of the Ozone Layer can also be considered as strict in nature due to the number of signatories, where it achieved universal ratification, thus the convention and its derivative regulations are strictly implemented by all UN member states. It is true that states’ sovereignty is essential in international law itself, where each state has the right to determine which path that their state will take. However, when a country has given consent to be bound to an international treaty or become a member of an international organization, then that country also has the obligation to follow the provisions of those regulations, regardless of their sovereignty and the nature of the treaty itself. Thus, when referring back to Kelsen’s notion of sovereignty, international law is truly prioritized if the state has given its consent to be bound to the treaty or the international organization.
References
[1] United Nations, “Status of the Convention and Related Agreements,” www.un.org, n.d., https://www.un.org/depts/los/LEGISLATIONANDTREATIES/status.htm.
[2] Jan Klabbers, “Clinching the Concept of Sovereignty: Wimbledon Redux” (1998) 3 Austrian Review of International & European Law 345, pg. 347.
[3] Ibid.
[4] S.S. Lotus, [1927] Publ. PCIJ, Series A, no. 10, 18, quoted in Jan Klabbers, International Law (Cambridge: Cambridge University Press, 2017, second edition), pg. 25.
[5] MacFarlane, Neil, and Natalie Sabanadze. “Sovereignty and Self-Determination: Where Are We?” International Journal 68, no. 4 (2013): 609–27. http://www.jstor.org/stable/24709362.
[6] Stern, W. B. “Kelsen’s Theory of International Law.” The American Political Science Review 30, no. 4 (1936): 736–41. https://doi.org/10.2307/1947949.
[7] Ibid.
[8] Ibid.
[9] Ibid.
[10] World Trade Organization. 1994. “General Agreement on Tariffs and Trade 1994.” WTO Treaty SeriesOpened for signature October 30, 1947. Introduction: GATT 1994 and GATT 1947.
[11] UN Environment Programme, “The Vienna Convention for the Protection of the Ozone Layer | Ozone Secretariat,” Unep.org, 2019, https://ozone.unep.org/treaties/vienna-convention.
[12] World Trade Organization, “WTO | Dispute Settlement — DS592: Indonesia — Measures Relating to Raw Materials,” www.wto.org, 2023, https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds592_e.htm.
[13] Ibid.
[14] Ibid.
[15] Ibid.
[16] Edward L Miles et al., “The Vienna Convention and Montreal Protocol on Ozone-Layer Depletion,” Environmental Regime Effectiveness (2022), pg. 149.
[17] UN Environment Program, “About Montreal Protocol,” Ozonaction, October 29, 2018, https://www.unep.org/ozonaction/who-we-are/about-montreal-protocol.
