Research Paper Number

5/2010

Document Type

Article

Publication Date

2010

Keywords

International court of justice; International law; law; sovereignty

Abstract

“What is sovereignty?” If there are questions international legal and political scholars ought to be able to answer, this is certainly one. State sovereignty is arguably the basis of all political and legal international relations. And, yet, what it means remains elusive. As we discuss whether we are witnessing the demise of the Westphalian system, it is critical to understand state sovereignty today. Despite the resurgence in sovereignty scholarship, there has been little empirical work done that combines political and legal theory. This project addresses that gap in the current literature between political science and international legal research by providing an empirical study of how sovereignty is conceptualized in international legal discourse. The theoretical basis for this paper is largely informed by international relations theory of binding states and the variability of sovereignty. The methodological approach is legal case analysis. Because sovereignty is such a slippery concept, the question of how to study it is tricky. This paper will follow Jens Bartelson’s approach and avoid the direct question “what is sovereignty?” and instead ask the question “how do we discuss sovereignty?” The project provides an analysis of advisory opinions and contentious cases before the International Court of Justice over the last fifteen years. The results of the research contribute to a general understanding of contemporary sovereignty in two main ways: Firstly, the study provides a framework of “ideal types” which suggests that contemporary notions of sovereignty fall into three main categories: (1) as the final and supreme power of the state requiring no justification (“The Prince”), (2) as a supreme power justified by the state’s ability to protect its citizens from both internal and external threats (“The Protector”), and (3) as a privilege granted by citizens of the state and the international community in return for accepting certain norms and fulfilling certain responsibilities (“The Citizen”). Secondly, the paper suggests that with a viable working vocabulary, legal and political scholars can then address questions concerning how the legal discussion of sovereignty interacts with international relations structure.

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