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 EXTERNAL SOVEREIGNTY AND
INTERNATIONAL LAW
Ronald A. Brand*

International law has to be as contemporary as the changed

world it reflects if it is to be taken seriously in the coming
century.'

INTRODUCTION
It is trite doctrine that international law is built on the no-
tion of consent. No state can be held bound to a rule of interna-
tional law (other than jus cogens) unless that state has consented
to the rule, either in a treaty or in the recognition of a customary
norm through public pronouncements and state conduct. We
refer to the relationships through which consent is expressed as
relations of sovereign parties. The sovereign must consent to be
bound to a particular norm of international law.
Sovereignty is a popular topic for current discussion, and it
may be that one can add little that is new to the already impos-
ing quantity of recent commentary. That commentary, however,
generally approaches relations between sovereigns in terms of a
Lockean, second-tier social contract.' This two-tiered notion of

* Professor of Law, University of Pittsburgh. I wish to express my thanks to Mary

Brand, Karen Minehan, and Joan Weilman for their comments and criticisms on an
earlier draft of this Essay.
1. Louis Henkin, InternationalLaw After the Cold War, ASIL NEWSL., Nov.-Dec. 1993,
at 1.
2. It is, of course, presumptuous to generalize about current notions of sover-
eignty. Many commentators much more able than I have delved into the topic in re-
cent years, and they certainly do not express a singular opinion on either the term or its
use as applied in international law. See, e.g., Richard B. Bilder, Perspectives on Sovereignty
in the Current Context: An American Viewpoint, 20 CANADA-UNITED STATES LJ. 9 (1994);
Richard Falk, Evasions of Sovereignty, in CONTENDING SOVEREIGNTIES: REDEFINING PoLIr-
ICAL COMMUNITY (R.B.J. Walker & S.H. Mendlovitz eds., 1990); Louis Henkin, The My-
thology of Sovereignty, reprintedin Notes from the President,ASIL NEWSL., Mar.-May 1993, at 1;
Donat Pharand, Perspectiveson Sovereignty in the Current Context: A CanadianViewpoint, 20
CANADA-UNITED STATES L.J. 19 (1994); W. Michael Reisman, Sovereignty and Human
Rights in Contemporay InternationalLaw, 84 AM.J. INT'L L. 866 (1990); Oscar Schachter,
Sovereignty - Then and Now, in EssS INHONOUR OF WANG TiEyA ch. 45 (Ronald St. John
Macdonald ed., 1993); Conference on ChangingNotions of Sovereignty and the Role of Private
Actors in InternationalLaw, 9 AM. U.J. INT'L L. & POL'Y 1 (Fall 1993); THE TsANsroMA-
TION OF SOVEREIGNTY. PROCEEDINGS OF THE EIGHTY-EiGHTH ANNuAL MEETING OF THE
AMERICAN SOCIETY OF INTERNATIONAL LAw (1995). Yet the fact remains that certain gen-

1685
1686 FORDHAMIATERNATIONALLAWJOURNTAL [Vol. 18:1685

sovereignty treats the relationship among states in forming the

international order as parallel to the relationship among citizens
in forming the order that is the state. In this way, it obscures
important aspects of the relationship between the citizen and
the state, and obstructs the proper functioning of that relation-
ship on the international plane. If international law is to "be
contemporary" in the twenty-first century, it must acknowledge
the principal social contract focus on the relationship between
the citizen and the state for purposes of defining sovereignty in
both national (internal) and international (external) relations.
The development of international law in the twenty-first
century will be determined by the continuing evolution of the
concept of sovereignty. A return to, and re-examination of, fun-
damental historical and philosophical underpinnings of the con-
cept of sovereignty in western thought will be required if this
evolution is to have a constructive effect on international law.'
In order to analyze the reasons for this reconsideration of earlier
concepts, it is worth reviewing those concepts and our deviation
from them over time.
Through this review, and through a discussion of important
developments in twentieth century international law, the need
for a redefinition of current notions of sovereignty emerges. In
this essay, that effort at redefinition returns to earlier concepts
of subjects joining to receive the benefits of peace and security
provided by the sovereign. It diverges from most contemporary
commentary by avoiding what has become traditional second-
tier social contract analysis. In place of a social contract of states,
this redefinition of sovereignty recognizes that international law
in the twentieth century has developed direct links between the
individual and international law. The trend toward democracy
as an international law norm further supports discarding notions
of a two-tiered social contract relationship between the individ-
ual and international law.

eralizations about sovereignty are at the core of current understandings of international

law, and in order to develop any projections about the course of international law such
generalizations must be addressed.
3. It is, after all, out of western thought that the concept of sovereignty arose and
became so central to the development of international law as we now know it.
 1995] EXTERNAL SOVEREIGNTY AND INTERNATIONAL LAW 1687

I. HISTORICAL UNDERPINNINGS OF CURRENT CONCEPTS OF

SOVEREIGNTY

In his Leviathan, Hobbes saw a world where goods are scarce

and desires unbounded, with each person focused on getting as
much as possible and preventing others from getting anything
that might contribute to that, person's preservation and well-be-
ing.4 In order to escape from the resulting "miserable condition
of war,"5 a sovereign is established through our mutual covenant;
and we confer upon the sovereign "all our power and strength,"
and "submit [our] wills, every one to his will, and [our] judg-
ments, to his judgments," so that "he may use the strength and
means of [us] all as he shall think expedient, for [our] peace
and common defence."6 To Hobbes, the sovereign's role in in-
ternational relations is an extension of the sovereign's role at
home. The sovereign must:
be judge both of the means of peace and defence, and also of
the hindrances and disturbances of the same, and .. . do
whatsoever he shall think necessary to be done, both before-
hand (for preserving of peace and security, by prevention of
discord at home and from abroad) and, when peace and se-
7
curity are lost, for the recovery of the same.
In sum, the sovereign is to provide security through peace and
common defense of the individuals who have covenanted for
that purpose.
Harold Laski tells us that, "[s] overeignty, in the sense of an
ultimate territorial organ which knows no superior, was to the
middle ages an unthinkable thing."' The "oneness" of humanity
was to be found through the pervasive unity of God (jus
divinum) in the Respublica Christiana.9 Like Hobbes' later focus
on the delegation of individual authority to the state, medieval
notions of sovereign power included limitations - based on ab-

4. THOMAs HOBBES, L vIATHA xiii [3]-[4] (E. Curley ed., 1994); see Joan Wellman,
Prudence, Science, and the Sovereign (unpublished manuscript on file with the Au-
thor).
5. HOBBES, supra note 4, at xvii [1].
6. Id. at xvii [13].
7. Id. at xviii [8].
8. HA.OLJ. LAsvi, THE FOUNDATIONS OF SOVEREIGNTY AND OTHER ESSAYS 1 (1921).
9. Id. at 2; see Helmut Steinberger, Sovereignty, 10 ENCYCLOPEDIA OF PUBLIC INTERNA-
TIONAL LAW 397, 398-400 (1987) (discussing Universitas Christiana).
1688 FORDHAMINTERNATIONALLAWJOURNAL [Vol. 18:1685

stract moral rights. 10 Thus, there were bounds beyond which the
sovereign could not pass in its relations with the individual, and
individual rights which were not alienable to the sovereign.
The Reformation destroyed any concept of a singular Re-
spublica Christiana, replacing it with the notion of state
supremacy, in which the sovereign "ceases to think of superiority
as existent outside itself."1 A new era of equal sovereigns began
with the 1555 Peace of Augsburg and became more formalized
in the 1648 Peace of Westphalia. Concepts of territorial limita-
tion of sovereignty brought with them notions of supremacy
within that territory:
The state is that which has no superior, wherefore all other
forms of social organization, as guilds for example, are sub-
ject to its control. The dawning sense of nationalism was at
hand to give that concept an enviable sharpness of definition.
There was thenceforth to be no lord of the world, imperial or
otherwise, for the simple reason that there was no single
world. There were England, France, and Spain. The life of
each was to be centralized within its ultimate sovereign .....
The group was not destroyed, but put in fetters. The state
emerges, as the middle ages pass, as the1 2 institution to which
has been transferred the ideal of unity.
With the replacement of the Respublica Christiana by the state,
"the significance of nationality became apparent, for it gave to
the glorification of the state an emotional penumbra it could
have secured in no other fashion.""3
The evolution of sovereignty replaced concepts of a "univer-
sal ethical right," with the idea that the state makes, interprets
and applies its own laws. Jean Bodin's De la Republique reflected
this evolution, with its sanction of absolute sovereignty resting in

10. See HoBBEs, supra note 4, at xiv [8].

Whensoever a man transferreth his right or renounceth it, it is either in con-
sideration of some right reciprocally transferred to himself or for some other
good he hopeth for thereby. For it is a voluntary act, and of the voluntary acts
of every man the object is some good to himself. And therefore there be some
rights which no man can be understood by any words or other signs to have
abandoned or transferred.
Id. "It was, for instance, general medieval doctrine that all princely acts which go be-
yond the moral purpose of the state were null and void." LAsiu, supra note 8, at 9.
11. LAsKI, supra note 8 at 12.
12. Id. at 12-13.
13. Id. at 15.
1995] EXTERNAL SOVEREIGNTY AND INTERNATIONAL LAW 1689

the state. "Jus est quod jussum est" became the "essence of the
state." 4 This did not, however, remove the tension between
state power and religious (primarily Papal) power, as philoso-
phers (including Bodin) continued to seek ways to limit the ab-
solute power of the state in order to provide for religious domi-
nation of, exceptions to, or freedom from, the power of the
state.
Laski describes works of the post-Reformation in terms rem-
iniscent of Aristotle's Politics. Thus, the state "differs from every
other form of organization in that it defines a common ground
upon which the interests of men may be held identical." 5
In any conflict, the state is a priori, bound to triumph because
the aspect of man that it expresses is common to us all. For
the state as a philosophic conception, there is neitherJew nor
Greek, neither bond nor free. We meet there upon the com-
mon ground of identical citizenship. That is why the state is
held to be the ultimate expression of the social bond. All
other forms of organization have a certain partial character
about them. The state embraces all men by its territorial na-
ture. It is universal because it is the one compulsory form of
association. 16
Throughout history, sovereignty has had both an internal
and an external component. In terms of providing security for
the individual within the state, the latter of these components
has both formed the source of consent to the second-tier social
contract and provided unity internally through the fear of exter-
nal aggression. Laski believed that "to move from that unified
sovereignty which is a protective against external attack to the
more complex problems of internal arrangement has no neces-
sary validity." 7 Thus, the internal aspects of sovereignty carry
with them the problems of submission of subjects to the sover-
eign, limits on the authority of the sovereign, and the need to
determine a sovereign representative.
It is the external nature of sovereignty that has provided the
grist for international legal scholars. Louis Henkin demon-

14. Id. at 17.

15. Id. at 26.
16. Id. at 26-27. Aristotle, of course, would not have made the same "neither bond
nor free" statement, with The Politis providing substantial discussion of the "necessary"
relationship between slave and master.
17. Id. at 27.
 1690 FORDHAMIATERNATIONALLAWJOURNAL [Vol. 18:1685

strates the problem of moving from concepts of internal sover-

eignty to the external realm as follows:
As applied to states in their relations with other states, "sover-
eignty" is a mistake. Sovereignty is essentially an internal con-
cept, the locus of ultimate authority in a society, rooted in its
origins in the authority of sovereign princes. Later it was de-
mocratized from Crown to people ("popular sovereignty"),
but that too is a strictly domestic notion. Surely, as applied to
the modern secular state in relation to other states,
8
it is not
meaningful to speak of the state as sovereign.'
Like others, however, Henkin describes international relations
much like a second-tier Lockean social contract. For Henkin,
this social contract is found in the U.N. Charter, with the Article
2(4) prohibition on the use of force as its "basic norm."' 9 In
order to avoid "citizen's actions" that would constitute improper
intervention by one state into the affairs of another, humanita-
rian and other violations of international law require that a con-
cerned state, "call the police, the Security Council, now rehabili-
tated."2 0
While I share Henkin's opinion that current concepts of
sovereignty applied in the international realm are both outmo-
ded and misguided, this does not lead me to the same conclu-
sions. I believe important twentieth century developments in in-
ternational law set the stage for something more than a second-
tier social contract of states coalescing in a high-minded but
often impotent vehicle for real cooperation. The United Na-
tions is a uniquely important development in international law
and relations, but we can neither be satisfied with its operation
to date nor be assured that its current weaknesses will not re-
main evident in the future. International law must "remain con-
temporary" in all its realms, not just in the United Nations struc-
ture, nor merely in military peacekeeping functions.

18. Louis Henkin, The Mythology of Sovereignty, in Notes from the President, ASIL
NFWSL., Mar.-May 1993, at 1.
19. Id.
20. Id.
1995] EXTERNAL SOVEREIGNTY AND INTERNATIONAL LAW 1691

II. TWENTIETH CENTURY EVOLUTION OF INTERNATIONAL

LAW AS THE FOUNDATION FOR A TWENTY-FIRST
CENTURY EVOLUTION OF SOVEREIGNTY

The development of international law in the twentieth cen-

tury already has tested current definitions of sovereignty and set
the stage for an evolution in our approach to international rela-
tions generally, and international law in particular. Several as-
pects of this development are important to considerations of the
concept of sovereignty.

A. Democracy as a Developing InternationalNorm

Henkin finds it amusing to speculate "on what international

law would look like today had there been no Russian Revolution,
no world Communism, no Cold War."2 He finds it more fruitful
to study what did happen during that period and seek to over-
come whatever frustrations or distortions attributable to conflict-
ing ideology might now be overcome. This exercise suggests two
subjects of study. The first is the bipolar power structure that led
to a "third world" in which the conflicts of the other two were
often carried on. Henkin uses this subject to address problems
with the concept of nationality as the tie between the individual
(whether natural orjuristic) and the state, ultimately suggesting
a reevaluation of both nationality and sovereignty.2"
Henkin's reflections on the end of the Cold War also sug-
gest that we consider the relevance of the rising tide of democ-
racy throughout the globe. Some have even gone so far as to
suggest that democracy can be considered in normative terms in
the international legal structure, and that people now have a
"right" to a democratic form of government. Whether or not
such a norm has been established, massive shifts toward demo-
cratic government bring with them new considerations for the
concept of sovereignty. The sovereign "prince" gives way to the
sovereign "we," as the people are the government. The represen-
tative nature of existing democracies limits the completeness of
this translation, but its importance cannot be ignored. If "we"
are the sovereign, then "we" are the subjects to be addressed in

21. Henkin, supra note 1, at 1.

22. Id.
1692 FORDHAMINTERNTATIONALLAWJOURNAL [Vol. 18:1685

constructing order and providing security in international as

well as domestic relations.

B. Developments in Relations Between Private and Sovereign Parties

in InternationalLaw
One of the most striking developments of international law
in the twentieth century is the extent to which the private party
(i.e., the non-sovereign) has become the subject of rules of inter-
national law. This was reflected in the Libyan oil arbitrations of
the 1970's, with the determination that private parties who enter
into relationships with sovereigns can choose to have those rela-
tionships governed by international law (in place of or as a sup-
plement to national law).S This concept was extended in other
arbitrations applying international law to private/sovereign long-
term development agreements - even where no choice of law
was expressed.2 4 It further evolved and found formal recogni-
tion in the establishment of the International Centre for the Set-
tlement of Investment Disputes ("ICSID"), and in subsequent in-
vestment treaties providing for referral of private/sovereign dis-
putes to ICSID. Thus, the application of international law
clearly has expanded beyond sovereign/sovereign relations to
cover private/sovereign relations.
During the same period, sovereigns have become more
often subject to municipal law. Nowhere is this development as
apparent as in the evolution of the restrictive theory of sovereign
immunity. The idea that a foreign sovereign is absolutely im-
mune from suit in a national court has given way not only to suit
on waiver of immunity, but suit for violations of international
law, for personal injury claims, and - perhaps most notably -
for claims based on "commercial activity" of the sovereign.
Thus, just as private parties who deal with sovereigns may now
have their conduct judged according to international law, sover-
eign parties dealing with private parties are more likely to have
their conduct considered in national legal systems.

23. See, e.g., Award on the Merits in Dispute Between Texaco Overseas Petroleum
Company and the Government of the Libyan Arab Republic, 17 I.L.M. 1 (1978).
24. See, e.g., Arbitration of Dispute in the Matter of Revere Copper and Brass, Inc.
and Overseas Private Investment Corp., reprintedin 17 I.L.M. 1321 (1978). One cannot
help but acknowledge the role of arbitration - in which the parties select the decision-
maker rather than submit to a national judiciary or even to an international judicial
mechanism - as a facilitator of these changes.
1995] EXTERNAL SOVEREIGNTY AMD INTERNATIONAL LAW 1693

The extension of international law to the conduct of private

parties is a divergence from the notion that international law
could apply only to states. It thus fractures the second-tier social
contract structure by bringing first-tier social contract subjects
directly into second-tier relationships. In doing so, it coalesces
with the rising tide of democracy to bring the individual "into"
the international legal framework.

C. Development of MultilateralMechanisms for Dispute Settlement

The twentieth century has seen history's most successful ef-
forts to set up arrangements for the peaceful settlement of dis-
putes involving states. The PCIJ and ICJ have provided over sev-
enty years of continuity for a World Court that, while seldom as
busy as international lawyers would like, has provided its share of
successful dispute resolution. The completion of the Uruguay
Round trade negotiations takes dispute resolution in the GATT
framework to a new level, enhancing and improving what has
been an extremely effective forum for the settlement of eco-
nomic differences. As noted above, ICSID has seen success in
establishing a forum for disputes between states and private in-
vestors.25 On a regional level, the European Court of Justice has
become so busy interpreting the European Union's set of trea-
ties and subsidiary legislation that a new Court of First Instance
has been established.
Notable in these dispute resolution developments is the fo-
cus on economic activity involving private parties. With the ex-
ception of some of the World Court cases - and a few funda-
mental EC and EU structural cases before the European Court
of Justice - most of the disputes addressed by these institutions
are tied in some manner to private economic conduct. Thus,
twentieth century successes in international dispute resolution
necessarily have touched on the relationship of the individual
(whether natural or juristic) to international law.
D. Development of Binding InternationalProtectionsfor Individuals
Hobbes' concept of sovereignty carries with it the right of
the sovereign to punish the subject's refusal to obey. The sub-
ject may refuse to obey, however, when the right of self-preserva-
25. Here one must acknowledge that many would limit kudos for ICSID in light of
failures to obtain enforcement of decisions once rendered.
1694 FORDHAMINTERNATIONALLAWJOURNAL [Vol. 18:1685

tion overrides the obligation to keep the covenant and obey the
sovereign. As the sovereign retains the right to punish any re-
fusal, such a subject can "have the liberty to do the action for
26
which he is nevertheless without injury put to death."
The twentieth century has seen the development of multilat-
eral frameworks for protection of fundamental rights of the indi-
vidual against the state. Through the European and Inter-Amer-
ican Courts of Human Rights we have seen steps toward limits on
the state enforced through international legal mechanisms.
Current efforts before the war crimes tribunal established to
consider conduct in the former Yugoslavia and the International
Law Commission's draft Convention for an International Crimi-
nal Court demonstrate promise of addressing such protections
by holding accountable the persons who claim to exercise power
on behalf of a sovereign. Once again, the century has seen the
individual's rights and role elevated in international law.

E. Regional Frameworks as Global Models

Subjects and states both are involved in the quest for peace
and security. These goals are the purpose of the fundamental
social contract, and the resulting obligation of the state. The
European Union provides a successful example of a multilateral
system of laws affecting both states and individuals directly.
Donat Pharand has described the European success effectively
(although his words retain the implications of a second-tier so-
cial contract):
The fact remains that there is a need in the international
community for the system of sovereign states to evolve in such
a way that a greater degree of peace and security in the world
becomes possible. After the two world wars, Europe has un-
derstood that need and has evolved accordingly. It began
with economic integration and is gradually developing a re-
gional political system which might eventually serve as a
model for the rest of the world. States of the European Com-
munity have exchanged a lesser sovereignty for a greater se-
curity and prosperity. Even in the delicate field of human
rights, the twenty-one member states of the Council of Eu-
rope are now parties to the most highly developed instrument
in the world. Since 1991, an individual may take a complaint

26. HOBBES, supra note 4, at xxi [17].

1995] EXTERNAL SOVEREIGNTY AND INTERNATIONAL LAW 1695

personally to the European Court on Human Rights, provid-

ing the petition has been declared receivable by the Human
Rights Commission. 7
Such a model bodes well for the possibility of wider multilateral
adoption of a broader rule of law. In some instances, the World
Trade Organization (as successor to the GATT system) provides
the opportunity to do so in the economic realm. At any rate, the
European example represents another important twentieth cen-
tury development of international law by providing rights of
peace, security, and economic benefit directly to individuals.

F. The Elimination of the LibertW de Guerre

One of the classic elements of sovereignty retained in inter-
national law through the nineteenth century was the state's right
to go to war to settle disputes, the liberti de guerre.28 The post-
World War I recognition of a general obligation to seek peaceful
settlement of disputes has matured into the prohibition on the
threat or use of force found in Article 2(4) of the U.N. Charter.
This is no minor achievement. While it may provide no direct
implications for the individual in international law, it has major
implications for the ability of the state as sovereign to provide
peace and security. By removing a principal impediment to
peaceful international relations, it facilitates endeavors to pursue
the ultimate goals of sovereignty on behalf of citizen-sovereigns.

IlI. TWENTY-FIRST CENTURY EXTERNAL SOVEREIGNTY

Each of these developments represents significant change
in concepts of international law. No longer is state conduct im-
mune from international scrutiny, or even from sanction. Mech-
anisms are being created through which "sovereign" conduct is
held accountable to international norms - without the ability
simply to claim lack of continuing consent to those norms.
These mechanisms demonstrate that the nineteenth century no-
tion of a second-tier social contract is no longer appropriate to
the conduct of international relations. International law has be-
gun to run directly to the individual. The state remains the or-
gan through which the individual is represented in the develop-
ment of international norms and mechanisms; but it may not

27. Pharand, supra note 2, at 33.

28. See Steinberger, supra note 9, at 407-08, 410-11 (1987).
 1696 FORDHAMINTERNATIONALLAWJOURNAL [Vol. 18:1685

always interfere when those norms are applied and those mecha-
nisms are implemented.
As the world shrinks through developments of transporta-
tion and technology, so does the distance between the individual
and international law. Some in government are threatened by
these developments and what they see as "giving up sovereignty."
In the United States, this debate played out recently in the deci-
sion to implement the Uruguay Round agreements.' Yet, if the
role of the sovereign is to provide security for its subjects, and
effective means present themselves for increasing security
through international law, then the role of the sovereign must
be to participate in the development of that law. It is not an
abdication of sovereign authority to delegate functions and au-
thority to a global system of law; it is in many cases an abdication
of that authority not to do so. This realization may prove a diffi-
cult adjustment for political processes still entrenched in dual
social contract relationships of the nineteenth century. It should
not prove difficult, however, if international legal developments
of the twentieth century are properly recognized as creating the
bridge to a new international legal order.

CONCLUSION
If the role of the sovereign is to provide security, and
strengthening the international rule of law results in increased
security, then the role of the sovereign must be to strengthen the

29. Compare, for example, the statements of Senators Helms, Thurmond and
Byrd discussing Helms' proposed "Sense of the Senate regarding the need to protect
the constitutional role of the Senate," at 140 CONG. REc. S10,582-591 (daily ed. Aug. 4,
1994), with those of Senator Dole, "Dole Cites Benefits of World Trade Agreement," in
a press release of Dec. 1, 1994.
The core of the external sovereignty problem in this context is nicely addressed in
the following statement:
[I]n one real meaning of the word, sovereignty is not something an individual
can give up: individuals give up their fights (which they have by nature) to act
exclusively out of short-term self-interest when they establish a sovereign, but
they do it because cooperation and mutual protection is ultimately in their
long-term self-interest. By the same reasoning, and even on the two-tier pic-
ture, sovereignty is not something a state can give up to other states: particular
commonwealths can institute a mutual authority out of long-term self-interest;
they can agree not to exercise some of the rights conferred on them by their
own subjects. Some of the "relinquishing sovereignty" business is just a con-
ceptual confusion: sovereignty is a relationship between governed and gover-
nor, not a feature of individual people or states.
Memorandum from Joan Wellman to Ronald Brand (Mar. 8, 1995).
1995] EXTERNAL SOVEREIGNTY AND INTERNATIONAL LAW 1697

international rule of law. If this is to be accomplished by dele-

gating traditionally "sovereign" functions to an international
body, then so be it. In a democracy-oriented world, the repre-
sentative of the citizen-sovereign should in fact take every oppor-
tunity to enter into legal arrangements, whether national, re-
gional, or global, that will increase security for the citizens. That
is the sovereign function.