Challenging the Myth of Optimal Balance

This essay argues that while some balance has been created between sovereignty and global legal regulation, it would be incorrect to suppose that the balance achieved is optimal. Optimal balance would mean that the balance acquired between sovereignty of the state and global legal regulation is such that it allows the percolation of the values and principles represented by the latter in domestic sphere without unduly compromising the sovereignty of the states. In other words, a balance is maintained where both state sovereignty and global regulation may co-exist. This balance is not depicted in the state practice as it exists at this point and will be demonstrated by this essay. The essay will argue that international law itself is not amenable to balancing sovereignty of state with the global legal regulation because international law prioritises state sovereignty. The essay will use human rights regulation, particularly related to refugee rights to show how sovereignty of the state can override the international human rights law.

Global legal regulation does not override the sovereignty of state because international law is structured to prioritise state sovereignty

If it is to be said that optimal balance between sovereignty and global legal regulation exists, then one would have to presume that such a balance is provided for in the international law, meaning that the international law provides a balance between the global legal regulation and the sovereignty of the state. However, I would argue that international law itself is structured in such a way that optimal balance (which would mean that both sovereignty and global legal regulation are well balanced with each other) is not possible. I would argue that international law prioritises state sovereignty over the implementation of the global legal regulation. Indeed Roth (2004) argues that there are three formidable presumptions of international law that are related to state sovereignty, which are that: a state’s obligation to abide by the international regulation itself depends on the extent of its actual or constructive consent; the state’s obligations are binding within the state only to the extent that it has incorporated these in the domestic law, and till such incorporation is done, the obligations may be fully binding internationally on the state as a corporative entity, but lack direct legal effect ; and the state’s territorial integrity and political independence are inviolable and if threatened allow the state to take action even in violation of its international legal norms. What this means is that within the structure of the international law itself, there are three presumptions in favour of state sovereignty that may even allow the state to override international law obligations. Roth (2004) supports the argument that international law itself allows the balance to be tilted in favour of state sovereignty, which would mean that there is a lack of optimal balance between the sovereinty and global legal regulation. Global legal regulation may create laws that are binding, but the creation of these obligations depend on the consent of the state and the extent to which they are implemented directly in the state also depends on the will of the state. Furthermore, states are justified under international law even when they disregard and violate these obligations if there actions were required to protect their territorial integrity and political independence. On the contrary, Grinin (2012) would argue that states have given up their sovereignty voluntarily as they integrate into the global processes under the global legal regulation, be this economic regulation or otherwise. He argues that globalisation has the power to make the concept of sovereignty itself restricted (Grinin, 2012). However, there is a flaw in this reasoning by Grinin (2012). It does not explain, as Roth (2004) does, how the actual or constructive consent of the state in creating restrictions for itself under international law would become irrelevant when the state violates the international law to protect its territorial integrity or political independence. Therefore, even when the state voluntarily restricts its sovereignty, this restriction lacks permanence. States can violate the same international laws that they consented to if necessary for the state. Without such permanence of the restrictions on state sovereignty, there cannot be an optimal balance between sovereignty and global legal regulation. Therefore, it can be said that international law itself allows prioritisation of state sovereignty which makes it difficult to achieve a state of optimal balance between state sovereignty and global legal regulation.

Lack of optimal balance: Example of global legal regulation of refugee law

The question asks whether there is an optimal balance between sovereignty and global legal regulation. To respond to this question, it can be said that there is a lack of such optimal balance because global legal regulation is often compromised for domestic interests of the state and justified by the states on the basis of their sovereignty thereby tilting the balance in favour of sovereignty and away from implementation of global legal regulation. For example, there is evidence of how states do not always comply with the international law on refugees contained in the United Nations Refugee Convention of 1951 and the Protocol of 1967 as well as related rights in the International Covenant on Civil and Political Rights (ICCPR). Contrary to the provisions in these international instruments related to the rights of refugees, Australia has followed a mandatory detention regime, which in A v Australia, the Human Rights Committee (HRC) had held to be a breach of Article 9 of the ICCPR ( A v Australia (560//1993) April 3, 1997, UN Doc CCPR/C/59/D/560/1993., 1993). As the HRC is not a court, Australia has refused to implement the decision. On the contrary, it can be argued that Australia has also acted contrary to the Vienna Convention on the Law of Treaties 1969, Art 26, which imposes a duty on States to perform treaties in good faith. Therefore, Australia has the duty to implement the provisions of the Refugee Convention as well as the ICCPR, which is has chosen to disregard and has justified this on the basis of its sovereign power to make laws for refugee regulation. Another example can be taken from the Ugandan law in Control of Alien Refugees Act (CARA) 1964, which contrary to the Refugee Convention and Protocol, imposes restrictions on movement and residence for refugees coming into the country (Hovil, 2018). Saskia Sassen (1998) argues that the transnationalisation of the immigration law due to the impact of the institutions like the European Union and international human rights codes, has meant that the state sovereignty has been impacted (Sassen, 1998). I would not agree with this view because actual state practice indicates that in spite of the international institutions and law, states still use national legislation to make laws on refugee regulation which may actually be contrary to the law of the global regulation. In contrast to Sassen (1998) Brian Opeskin argues that migration policy remains “the last major redoubt of unfettered national sovereignty” and that contrary to what some scholars may argue, the capacity of liberal democracies like Australia to regulate international migration is not compromised by the growth of international human rights norms or the role of global bodies enforcing these norms (Opeskin, 2012, p. 552). What this means is that despite there being adoption of human rights laws in international law as well as creation of independent bodies like the HRC to enforce these laws, the ability of the states to make migration policy, even contrary to international law, is not as yet compromised. Therefore, I believe that Opeskin (2012) is correct in pointing out that the use of national legislation to bypass international obligations that protect refugee rights in Refugee Convention is an example of how sovereignty of the state can override the global legal regulation. This supports the argument that there is lack of optimal balance between sovereignty and global legal regulation and that the balance is tilted in favour of state sovereignty.

In conclusion, state sovereignty may outweigh the responsibility of obligations created under the international law because the international law itself prioritises state sovereignty. The actual practice of states in the area of refugee regulation also indicates that states do make laws that are not in accordance with the global regulation on refugee rights. This also means that there is a lack of optimal balance between sovereignty and global legal regulation. Overall, it can be said that instead of thinking of optimal balance, which suggests the right level of balance, it can be appreciated that such a balance may not be possible given the importance of sovereignty as a concept even within the international law.

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Bibliography

A v Australia (560//1993) April 3, 1997, UN Doc CCPR/C/59/D/560/1993. (1993).

Grinin, L. E., 2012. State Sovereignty in the Age of Globalization: Will it Survive?. Globalistics and Globalization Studies, pp. 211-237.

Hovil, L., 2018. Uganda’s refugee policies: The history, the politics, the way forward. Kampala: IRRI.

Opeskin, B., 2012. Managing International Migration in Australia: Human Rights and the “Last Major Redoubt of Unfettered National Sovereignty. International Migration Review , 46(3), p. 551.

Roth, B. R., 2004. The Enduring Significance of State Sovereignty. Fla. L. Rev. , Volume 56 , p. 1017.

Sassen, S., 1998. The de facto transnationalizing of immigration policy. In: C. Joppke, ed. Challenge to the nation-state: Immigration in Western Europe and the United States . Oxford: Oxford University Press, pp. 49-85.