This is a final exam. I would like somebody to write 5 pages for each question following the instructions below. Your answers should be from your own words after reading the course readings I have attached.

Unit Learning Objectives

After reading this unit, you will:

· Have a better understanding of the meaning of, and relationship between, 'sovereignty' and the 'state' in international law, and how they evolved over time

· Be able to describe how international law has evolved over time reflecting changes in the state system.

· Have a better understanding of how international law provides a framework for international order and global governance based on the foundation of sovereign statehood.

Unit Plan and Summary

This unit examines the origins of international law and the key historical events, ideas and legal philosophies that have influenced its development over time. The unit then introduces two key concepts central to understanding international law within the broader context of international relations: sovereignty and the state. The unit concludes with a discussion of how the international legal system promotes international order and provides a framework for global governance.

Outline

1. Historical Origins of International Law

2. Sovereignty and the State

3. Evolution of the State System

4. Development and Change in International Law

Readings

· J. Barkin, Samuel, and Cronin, Bruce. “ The State and the Nation: Changing Norms and the Rules of Sovereignty in International Relations .” International Organization 48, no. 1 (1994): 107–130. doi:http://dx.doi.org/10.1017/S0020818300000837.

· Philpott, Daniel. “ Sovereignty: An Introduction and Brief History .” Journal of International Affairs 48, no. 2 (1995): 353–368.

Key Concepts

· Sovereignty (Internal and External)

· State

· Territoriality

· Universal International Law

· Heteronomy

· Horizontal & Vertical Expansion in International Law

· Regional International Law

· Particular International Law

· Foundational Norms of Sovereign Statehood

· International Law of Coexistence

· International Law of Cooperation

· Imperialism and Colonialism

Origins of International Law

Systems of norms and rules have existed for thousands of years to order relations among distinct socio-economic and political units such as city-states and empires. 1  International law as we know it today, however, emerged in the seventeenth century in the transition from the feudal or medieval system in Europe to the modern system of sovereign states. To understand better international law's origins therefore, it is useful to examine briefly the characteristics of the European feudal system and the factors that led its demise and the emergence of the state system.

Characteristics of the feudal order

The European feudal system, which lasted from about the twelfth to early seventeenth centuries, had two characteristics distinguishing it from the sovereign state system that replaced it.

1. Heteronomy: The feudal system was characterized by "heteronomy," in which political authority was dispersed among different centres and officials, including religious officials of the Catholic Church and secular (non-religious) members of the landed aristocracy (e.g., kings, queens, princes, dukes, and barons). The Catholic Church during this period represented a sort of overarching authority, which attempted to unify all of Christendom. This created a mutual dependency between religious and secular authorities, in which Church theology provided the basis for the legitimacy of the aristocracy's political authority. 2  Thus, secular rulers held office only with religious approval and were kept in line under threat of excommunication.

2. Trans-territorial: The territories in which rulers exercised power and authority were not demarcated clearly. Instead, there was a system of overlapping territorial jurisdictions.

The transition from the feudal to the modern state system, from heteronomy to sovereignty, occurred when secular political leaders sought a new basis of authority independent of the Church, where they could exercise within clearly demarcated territories. The main factors that facilitated the transformation from the medieval to the modern state system were changes in material conditions, ideational factors, and the exercise of military power.

Factors Contributing to the end of Feudalism

Material Conditions:

The mid 15th century onwards was the beginning of European exploration of the "new world" (Asia, the Americas and Africa), and the beginning of European imperialism and colonialism. Increased commercial activities in Europe and with new world settlements and colonies together with technological advances, combined to give secular political authorities new sources of wealth and power.

Ideational factors:

Important new ideas emerged in Europe, including the Protestant reformation, which challenged the authority of the Church, and the renaissance, a revival of the arts, and a quest for knowledge that had been "lost" during the "dark ages" after the fall of the Roman Empire. 3  Some historians argue that one of the most important renaissance ideas was the rediscovery (from the Romans) of the notion of private property. 4  The reformation led to the creation of a new secular basis of political authority that gradually became legitimized as the principle of sovereignty. 5  The rediscovery of private property resulted in a new basis of organizing this secular authority, derived from the notion that monarchs were the "owners" of mutually exclusive territories with fixed boundaries. Monarchs were henceforth "sovereign" within their territories; i.e., they had "divine right" to exercise supreme authority over the land and inhabitants, which did not emanate from the Church. 6

Military Power:

However, the transition to the sovereign state system did not occur peacefully. It took a major war (the "Thirty Years War") to establish a new political order in Europe. The Thirty Years War ended in 1648 with a peace agreement signed in Westphalia (in present day Germany), and this date is usually cited as the beginning of the sovereign state era (hence, the name "Westphalian" state system).

Following the Peace of Westphalia, sovereign territorial states became the pre-eminent from of political organization. This process took centuries to consolidate. In some historical accounts, the territorial state did not become the dominant type of political organization in the world until the early twentieth century. International law followed from the development of the sovereignty norm, "as a set of rules devised by and for sovereign princes to regulate their dealings with each other." 7  These developed over time into the broad set of norms, rules, principles, institutions and practices that today constitute modern international law and the society of states.

Sovereignty, the State & Territoriality

'Sovereignty' and the 'state' are perhaps the most elusive concepts in the study of international law and organization. Thus, rather than offering a comprehesive definition that attempts to capture all usages of the terms, we can delineate some of the features essential to understanding their role in international organization. First we begin with the concept of sovereignty, and show its relationship to the state. Then we discuss the state as the embodiment of sovereignty.

Sovereignty

The first thing to note is the distinction between sovereignty and the state. Many conventional approaches and theories in international relations simply assume that states are by definition sovereign. However, as we shall see throughout the course, the two concepts are not synonymous.

Sovereignty emerged as a constitutive principle of political authority replacing heteronomy in medieval Europe. The state emerged as a territorially defined political unit, which was to be the domain for exercising sovereign authority. 8  Sovereignty can thus be defined as supreme authority over a territory (and everything located within that territory including the people, plants and animals, land, waters, natural resources, and air-space). 9

Sovereignty can thus be defined as supreme authority over a territory

Sovereignty is the constitutive principle/rule that not only defines the state (and distinguishes it from all other forms of social, economic and political organizations) but also allows it to enjoy rights and duties in IL.

Sovereignty is not necessarily an empirical or behavioural attribute, but a constitutive principle that creates a state in the first place (i.e., a state must be recognized to be a state). Without the principle of sovereignty, the territorial state as we know it would not exist.

State

The state is a political unit or community comprised of a relatively settled population living in a demarcated territory, with a government responsible for making public policies and laws.

A sovereign state in international law has the following attributes:

· Territory: A demarcated territory, which is the equivalent of the `property' of a state - the land, waters, airspace, etc.;

· Population: There must also be a relatively settled population (a nation?) living within the borders of the state.

· Government: Within this territory, there must be a government (which is the official representative of the state and which can enter into relations with other governments and states).

· Independence The government that represents a state must be independent, i.e., it is legally the equivalent of other independent governments, is the highest authority within its territorial jurisdiction, and is under no higher authority.

As we shall see in subsequent sessions, there is a great irony here. The constitutive principle of sovereignty, which made possible the emergence of the state and international law, is also the single greatest obstacle to the development of international law.

Three terms are essential to understanding sovereignty in international law and organization. These are: territoriality, authority, andrecognition.

Territoriality

Territoriality defines the essence of sovereignty, because it provides both the realm for exercising supreme authority and for excluding other authorities. Territorial sovereignty has internal and external dimensions, because authority would not be supreme if there were internal and external challengers. 10

· Internal sovereignty refers to a government's supreme political authority within a state's territorial boundaries.

· External sovereignty means that each state is juridically equivalent to other states and that its government, people and territory are subject to no higher external authority.

Internal and external sovereignty coexist and are complementary. Thus, supreme authority within a territory implies both supremacy over the inhabitants and independence from unwanted outside intervention. 11

Sovereignty in contemporary lnternational law, then, implies that all states are legally equal (even though they differ in their actual capabilities – economic, military, etc) and that they refrain from unlawful intervention in each other's domstic territorial jurisdiction.

Authority

Authority is the right to make decisions and rules, a right legitimized by the recognition of others. This legitimate authority is institutionalized power that is different from raw power to the extent that it does not depend on outright coercion. 12  Whereas most authority relations are hierarchical (a superior-subordinate relationship), sovereign authority is a relationship among equals.

Recognition

Recognition by other states legitimates the authority granted by sovereignty. This has generally held true even if the domestic inhabitants of the state do not recognize and accept that authority. 13  Thus, sovereign authority presupposes the recognition of others who by virtue of their recognition, agree to be excluded. In other words, sovereignty is not about who has the raw physical power to act, but about "who is to be a power" in global politics. Sovereignty, in effect, makes a population inhabiting a territory eligible to participate in the global arena. In this sense, sovereignty is not an attribute of a state, but is attributed to a state by other states. 14  Although state control (e.g., policymaking autonomy and capacity, and the ability to control cross-border flows) varies over time and across regions and issue-areas, sovereignty as a claim to supreme political authority has persisted for more than three centuries. 15

The idea of soverignty (i.e., supreme suthority) has remained constant for over three hundred years. However, the meaning of sovereignty (i..e. the scope of territorial jurisdiction and the authority that can be exercised within that jurisdiction) has changed over time. As we shall discuss in subsequent sections, the meaning of sovereignty is still evolving. In addition, the entities that claim to possess sovereignty have also varied historically. In the contemporary period, state governments generally claim this right, but actors within and outside state borders are increasingly challenging this claim.

Evolution of the State-system

The new secular basis of political authority (sovereignty) and the new form of spatial differentiation among political units (territorial states) that emerged from medieval Europe were unique inventions in modern history. In Asia, the Middle East, Africa, and the Americas, alternatives to the territorial state could be found ranging from large empires and kingdoms to smaller socio-political groupings based on culture, kinship, ethnicity, religion, and language often with nebulous territoriality. Even in Europe, alternatives to the territorial state such as the Italian city-states and German Principalities persisted long after 1648. 16

Several factors accounted for the state's success over rival forms of political organization. First was the state's adaptability. The state is based on secular political authority not tied to any particular (religious) belief-system, and some historians suggest this made the state more adaptable to technological advances and other changes. Other systems of rule such as the ancient empires in the Chinese and Indian sub-continents were less adaptable, because they were rooted in particular belief-systems.

The state also succeeded over rival political forms because it was a more efficient means of organizing the socio-economic resources needed to sustain warfare and violence. 17  Indeed, violence and warfare were an integral part of state formation first in Europe and then in other regions. Through imperialism and colonial conquest, the territorial state-system expanded from Europe to encompass the entire globe.

Almost all present-day states in Africa, Asia, and the Americas were once colonies of European states. These states are the product of processes beginning in medieval Europe through which the world's scattered peoples were brought together into a single society of sovereign states and a single global economy. 18  Non-European societies that retained their independence, such as Japan and China, had to come to terms with a world in which European technology and influence were dominant, and to adapt their domestic political structures to meet the European prerequisites of statehood. Thus, by the early twentieth century, territoriality appeared to have triumphed over culture, ethnicity, religion, and language as the main basis of organizing people into differentiated political units, and sovereignty became institutionalized as the main criterion of membership in the international society of states.

Table 3.1 shows the growth in the number of states between 1648 and 2012.

Table 3.1: Growth in the Number of States
Year	No. of States	Change
1789	23
1940	69	+46
1960	91	+22
1970	134	+43
1980	158	+24
1990	166	+8
2012	194	+27

By 2012, 194 states claimed territorial ownership and varying degrees of jurisdiction (i.e., the authority to make and enforce rules and policies) over most of the earth's land surfaces, sub-soil, air space and waters (oceans, seas, lakes, and rivers). The main exceptions are 'international airspace' and ocean areas designated as 'international waters', 'ocean floor' and 'deep sea bed'. 19  We discuss jurisdiction in Unit 7.

Most rules of contemporary international law (e.g., diplomatic and consular immunities, sovereign immunity, rules on territorial jusrisdiction, title to territory and state succession, and state responsibility and the rights of aliens) which we shall discuss in subsequent sections, were devised to regulate the coexistence of sovereign entities with each other in a society of states.

Whereas most traditional international law deals with the external aspects of sovereignty (how states interact with each other), the internal aspects of sovereign jurisdiction (what states do within their territorial domains) were generally considered sacrosant, except when they adversely affected other states. 20   This reflects the fact that traditional international law was primarily concerned with regulating inter-state diplomatic and security relations. Contemporary international law has expanded to include a wide range of socio-economic and cultural issues such as trade, finance, the environment, development, migration, and human rights. Globalization, advances in communication and information technologies, and the growth of private actors and institutions have also shaped it. As a result, international law is increasingly addressing the internal aspects of sovereign jurisdiction. Furthermore, although European states were mainly responsible for shaping international law in its formative period, non-European states have had an increased role since World War II. 21

External aspects of sovereignty: how states interact with each other

Internal aspects of sovereignty: what states do within their territorial domains

Thus, the substantive content and scope of coverage of international law have expanded, and this expansion has been both verticaland horizontal. 22

· Vertical expansion occurs as the number of states and types of international actors (private as well as public) increases and as rules and institutions achieve greater universality.

· Horizontal expansion occurs as new rules and institutions are created to address a growing number of international issues (e.g., peace and security, trade, economic development, education, labor, refugees, human rights, and the environment).

The most far-reaching changes occurred after World War II and in the post-Cold War period.

International Law & International Order

Territorial sovereignty has been the key organizing principle providing a degree of coherence to international organization for much of the last 300 years. It has also provided a framework for global governance, giving states the primary authority to create, monitor, and implement rules and policies. Figure 3.1 shows how the international legal system promotes international order and provides a framework for global governance.

The figure (which should be read from the bottom-to-top) depicts three levels of ordering in contemporary international law: universal or general international law including the foundational norms of sovereign statehood, the international law of peaceful coexistence, and the international law of cooperation; regional international law; and particular international law. As we noted in the discussion of the hierarchy of sources in Unit 2, these levels are arranged hierarchically with universal/general international law taking precedence over regional and particular international law.

Figure 1: International Law and the Framework for Global Governance

Universal International Law

Universal international law includes the general practices of sovereign statehood, which provide the foundation for all other rules of international law. Universal international law also includes the international law of coexistence, which defines and regulates the exercise of sovereignty by prescribing and proscribing behavior to facilitate the peaceful coexistence of states. 23

To promote the peaceful coexistence of states despite their social, political and economic differences, this law seeks to achieve a society of states – reciprocal recognition of each others' rights to exercise jurisdiction within their territories and an obligation not to infringe on the jurisdiction of others. Many rules at this level are negative rules of abstention, forbidding discrimination in relations among states and unwanted interference in their domestic affairs. 24  The rules also delineate acceptable exceptions to the absolute exercise of sovereignty (e.g., rules on diplomatic immunity, and the rights of aliens, which we discuss in subsequent Units). 25  Although these rules continue to be relevant, they are changing because of the expansion of state activities into new spheres, the proliferation of states and non-state actors, and the clash of competing values and interests. The international law of coexistence is the oldest aspect of international law, covering the traditional sphere of inter-state diplomatic/security relations, and its major sources are general international customs, multilateral treaties, general principles, and judicial decisions.

Modern developments have added the need for cooperative arrangements implemented by treaties, international institutions and soft laws known the international law of cooperation. Rules at this level prescribe and proscribe patterns of interaction beyond the requirements of peaceful coexistence. In other words, the international law of cooperation recognizes that rules are required, not only to address the peace and security of states, but also to realize other values such as economic growth and stability, human rights, and human security. Thus, the international law of cooperation represents a move away from an essentially negative code of abstention to positive rules of cooperation that are institutionalized in global intergovernmental organizations (IGOs) and international regimes, which we discuss in Unit 6. 26  Examples include IGOs and regimes that regulate air and maritime transport and navigation, global telecommunications, international health and welfare, international finance, trade, and monetary relations; and that are striving to regulate in areas such as human rights and environmental protection. Many of the laws of cooperation are in the form of soft laws, and involve public and some private international institutions.

Regional and Particular International law

It is not always possible to achieve universality, because international cooperative arrangements depend on a degree of common interests and values. Thus, cooperative arrangements are also built at the regional and particular levels.

· Regional international law applies only to regional groupings of states; the major sources are regional treaties and customs, and increasingly, soft international laws.

· Particular international law applies only to bilateral relationships; major sources include bilateral treaties and soft laws.

Private international institutions are most active at these two levels. Although regional and particular international laws may modify universal international laws to address relationships among smaller groups of states, this does not negate their obligations under universal international law.