A Normative Theory of Sovereignty Transfers
Verdirame, Guglielmo, Stanford Journal of International Law
F. The ICJ
In none of its cases has the ICJ dealt with either the sovereignty or the liberty questions directly. Yet, the ICJ, and its predecessor the PCIJ, adopted a distinctive conception of sovereignty that has been extremely important in the development of international law and is relevant to both of those questions.
This conception of sovereignty goes back to the view, first expressed by the Permanent Court of International Justice in Lotus, that state sovereignty may be restricted only through the consent of states; this is the Lotus presumption, (118) or the "metaprinciple of sovereign liberty." (119)
In Lotus, the Permanent Court rejected the French argument that the "Turkish courts, in order to have jurisdiction, should be able to point to some title to jurisdiction recognised by international law in favour of Turkey." (120) The Permanent Court accepted instead the Turkish argument that the question was whether the exercise of jurisdiction by Turkey had come into conflict with a principle of international law. It explained:
This way of stating the question is also dictated by the very nature and existing conditions of international law. International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims. Restrictions upon the independence of States cannot therefore be presumed. (121)
The word sovereignty does not appear in this passage, but sovereignty is what is really meant by the word "independence" in the operative sentence at the end. Moreover, in a later passage the court explains that "all that can be required of a State is that it should not overstep the limits which international law places upon its jurisdiction; within these limits, its title to exercise jurisdiction rests in its sovereignty." (122) The Lotus idea of sovereignty could be summarised in two propositions: First, the original position on the international plane is absolute freedom for states; second, states move away from this original position only by freely consenting to international obligations.
As noted by Judge Simma in his Declaration, Lotus provided the "underlying rationale" for the ICJ's Advisory Opinion in the case of Kosovo. (123) The ICJ opined that, in the absence of a prohibitive rule in international law against declarations of independence, the declaration of independence of Kosovo had to be presumed to be "in accordance with" international law. (124) There was no small amount of irony in the fact the souverainisme of Lotus was deployed to tramp a quintessentially souveraniste argument about the territorial integrity of Serbia. (125)
The Lotus view is inadequate for a number of reasons. First, it is not clear why the original position for states should be one of absolute freedom. The answer that it follows from the consensualist foundations of international law simply begs the question. Secondly, the practice of states, particularly in relation to newly independent states, contradicts this account of an originally boundless sovereignty that is progressively limited through consent.
II. THE PHILOSOPHICAL ORIENTATION OF THE DOMESTIC AND INTERNATIONAL JURISPRUDENCE ON SOVEREIGNTY AND LIBERTY
The jurisprudence I discussed above deals with questions that are central to the nature of international law. It is a philosophical jurisprudence in the sense that it is premised on or promotes a particular vision of the international system. Adjudication is not of course an exercise in abstraction. Courts must ground their answers in the positive law. Nevertheless, international or constitutional law adjudication on points that find no clear answer in precedent will often require courts to grapple with principles that are formulated in very general terms and to argue at a fairly high level of abstraction. …