Technology, Sovereignty and International Law

Francis Lyall

• Editorial: Routledge
• Año: 2022
• ISBN:
  9781000553765
• Edición: 1
• Categoría: Diritto
• Categoría: Diritto in ambito scientifico e tecnologico

The dogma of the sovereignty of the state, deriving from the Peace of Westphalia, underpins much of the modern-day international system. However, developments in recent technology have led this ideology to depart from reality. Viewing state sovereignty through the prism of public international law, the book will begin with an overview of the settlement of Westphalia, how it has influenced international documents ever since, and how the advantages of centralised decisions came to be perceived. By surveying the Law of the Sea, Maritime Law, Air and Aviation, Telecommunications, Postal Services, Space Law and Mensuration, the book demonstrates how, in each, the interplay between state sovereignty and developing technologies have caused significant legal change. Some changes, Lyall argues, such as international measures of time and geography, have been born out of convenience, facilitated by technology developed for the purpose. Other areas of change developed out of a desire to reconcile conflicts or harmonise necessary state regulation. The book analyses the reasons behind these changes and discusses the ongoing attempts to balance state equality, measures adopted by new institutions to secure comprehensive representation. It ends by looking to the future of state sovereignty in an increasingly globalised world. The book is of use to any student or scholar interested in policy making, international law and international affairs, both legal and scientific, as well as those looking at legal administrative issues and government officiation.

1 Sovereignty and Global Governance

DOI: 10.4324/9780429293368-1

Introduction

In any dictionary, the term ‘sovereignty’ has several meanings. One is the ability of a state independent of others to make and enforce laws within its territorial jurisdiction. That is the dogma that lies behind the departure of the United Kingdom from the European Union. The UK understanding of the term contrasted with the notion of ‘pooled sovereignty’ that some EU supporters offered as an alternative to individualism. Second, sovereignty has bedevilled many negotiations that were intended to result in a common approach to international problems such as those on climate change. The United Nations Framework Convention on Climate Change was signed at Rio de Janeiro in 1992.¹ The subsequent meetings of the Conference of Parties held within that Framework, particularly those that adopted the Paris Agreement of 2015, make the point clear.² I wonder what will happen at Glasgow in 2021. Sovereignty also gives rise to such rules of international law as that of ‘Sovereign Immunity’, ‘Diplomatic Immunity’ and ‘Nationality of Claims’, each of which has been productive of cases both international and domestic. In short, ‘sovereignty’ is a word of many meanings, even when it is properly used in a given context.

1 United Nations Framework Convention on Climate Change, Rio de Janeiro, 1992, 1771 UNTS 107; 1995 UKTS 28, Cm 2833; Kyoto Protocol to the United Nations Framework Convention on Climate Change, 2303 UNTS 162; 2005 UKTS 6, Cm. 6485. Cf. the IPCC Summary for Policymakers, (2018), of its Special Report on the impact of global warming; the Summary for Policymakers (2021), and Climate Change 2021: The Physical Science, the Working Group 1 contribution to the Sixth Assessment Report, 2021: www.ipcc.ch/report/ar6/wg1/#SPM. 2 The Paris Agreement regarding the United Nations Framework Convention on Climate Change, 2015, 2017 UKTS 4, Cm 9395; US TIAS No. 16–1104.

Alien observers would be puzzled by the global governance of Sol Three and the impacts made by notions of ‘sovereignty’. Terrestrially, how to organise the affairs of the world is a matter of continuing debate. Many may even take issue with the whole concept of governance. ‘Governance’ implicitly suggests an overarching authority, which will dictate globally and reduce the separate and individual powers of the state – a view that is incompatible with the hallowed doctrine of state sovereignty. For us, the question may be better expressed as how the world should be organised, leaving the means obscure. The notion that ‘sovereignty’ might have to be infringed in order to properly ‘organise’ world affairs is thereby avoided.³ Modern discussions have therefore chamfered the language of discourse preferring to discuss ‘global governance’ without examining its instruments too closely.⁴ The fact to be faced is that a considerable number of international organisations and associations now exist through which international intercourse of many kinds is managed or regulated and which, as a result, can significantly affect matters that traditionally are the exclusive province of the ‘sovereign right’ of a state.⁵ Most people do not notice the incursion.⁶ Politics and commerce are, of course, relevant to the deliberations and actions of these bodies, but my point is to outline the extent to which the activities of these organisations and associations now impinge on the freedom of action that is at least doctrinally the core of sovereignty. Commerce in general and the interests of commercial entrepreneurs in particular can be weighty considerations and will be noted where relevant. My purpose is to look at the international law aspects of the impact of technologies in seven areas of life, before turning to a basket of instances where convenience rather than formal law has been the effective cause of change. But first, how did we get here?

3 At its most absolute, the concept of ‘sovereign’ has some of its roots in the theology of a single deity. In UK constitutional history it was developed by A.V. Dicey, particularly in relation to the ‘sovereignty of the (Westminster) Parliament’: Introduction to the study of the law of the Constitution (London: Macmillan, 1885: 10th ed., 1962). 4 The literature on global governance by international relations specialists is immense. I have not scratched the surface. I note the following:

Commission on Global Governance, Our global neighbourhood: Report of the Commission on Global Governance, (Oxford: Oxford UP, 1995); G. Kreijen, State, Sovereignty and International Governance, (Oxford: Oxford UP, 2002); M.P. Karns, International Organizations: the politics and processes of global governance, (Boulder, CO: Rienner, 2010); C. Joerges, I-J. Sand and G. Teubner, eds., Transnational Governance and Constitutionalism, (Oxford: Hart, 2004); D. Sarooshi, International Organizations and their Exercise of Sovereign Powers, (Oxford: OUP, 2005); T.G. Weiss and R. Wilkinson, eds., 2d ed., International Organization and Global Governance, (Milton Park: Rout-ledge, 2018); E. Fahey, Introduction to Law and Global Governance, (Cheltenham UK: Edward Elgar, 2018); E. Benvenisti, The Law of Global Governance, (Leiden: Brill-Nijhoff, 2014) or (2015) 368 Hague Recueil des Cours, 47–279; A. Lopez-Claros, A.L. Dahl and M. Groff, eds., Global Governance and the Emergence of Global Institutions for the 21st Century, (Cambridge: Cambridge I.P., 2020).

5 E. Stein, ‘International Integration and Democracy: No Love at First Sight’ (2001) 95 AJIL 489. G. Clarke and L.B. Sohn, World Peace through World Law: Two Alternative Plans (Cambridge Mass.: Harvard UP, 1958) was over-optimistic, though influential when I was a student. Cf. C. Tietje and A. Brouder, Handbook of Transnational Economic Governance Regimes, (Leiden: Nijhoff, 2009). 6 ‘No-one notices something that works too well,’ per Lu-Tze in T. Pratchett, Thief of Time (London: Doubleday, 2001), 115.

Sovereignty Emergent

For centuries with the arguable exception of Venice,⁷ European territories were ruled by autocracies, whose membership was often selected by family links, and occasionally displaced by strength of arms. Frequently, one individual would be, at least apparently, primus inter pares. The ‘right to rule’ might pass by inheritance down a dynastic line, as were the territories of the Hapsburgs,⁸ but a territory might be sold, gifted, even pledged in guarantee of a dowry and forfeited if the pledge was not met.⁹ And, of course, territories could be acquired by conquest. However, practice, precedent and the need for stability produced ‘normal’ ways as to how the rulers of territories interacted, ways that came to amount to expectations. Within their own jurisdictions, whoever was in power regulated such matters as weights and measures as well as the calendar to which was tied the marking of the passage of time and the due observance of seasonal ceremonies. All that was taken for granted.

7 J.J. Norwich, A History of Venice, (London: Allen Lane, 1982; Penguin, 2012). 8 M. Rady, The Hapsburgs: The Rise and Fall of a World Power, (London: Allen Lane and Penguin, 2020). 9 The Orkneys and Shetland came to Scotland as an unredeemed pledge made in 1468 by Christian I, King of Norway, as security for the dowry of his daughter Margaret who was to marry James III. Unfortunately the ship she was travelling in to Scotland sank and she was drowned. The dowry money was never paid and Scotland retained the islands. There have been some attempts to redeem the pledge.

The thought of ‘territory’ as ‘property’ lessened with the emergence of an inchoate concept of ‘the state’ and was to pass a watershed in the seventeenth century. In 1648, two treaties, agreed at Osnabrück and Münster and usually classed together as the ‘Peace of Westphalia’, brought the Thirty Years’ War (basically a war between the Hapsburgs and the Bourbon families), to an end.¹⁰ There is argument as to whether the treaties fully bear the interpretation that is now put on them,¹¹ but that is not relevant for this book. Suffice it to say that non-intervention in the domestic affairs of foreign states and the inviolability of state borders – in short ‘state sovereignty’ – were seen as principles upon which the affairs of state, at least in Europe, should be conducted.¹² Thereafter, these principles were to play a role in negotiations both bilateral and multilateral.¹³ That remains the case.

10 Münster: 1 CTS 70, Osnabrück: 1 CTS 319. Cf. Treaty of Osnabrück https://www.lwl.org/westfaelische-geschichte/portal/Internet/finde/langDatensatz.php?urlID=740&url_tabelle=tab_quelle; Treaty of Westphalia: https://avalon.law.yale.edu/17th_century/westphal.asp. The Peace of Westphalia: https://pages.uoregon.edu/dluebke/301ModernEurope/Treaty%20of%20Westphalia%20%5BExcerpts%5D.pdf. A.S. Hershey, ‘History of International Law since the Peace of Westphalia’, [1912] 6 AJIL 30–69; L. Lesaffer, ‘The Westphalia Peace Treaties and the Development of the Tradition of Great European Peace Settlements prior to 1648’, 1997 18 Grotiana 71–95. 11 C. Harding and C.L. Lim, eds., Renegotiating Westphalia: Essays and Commentary on the European and Conceptual Foundations of Modern International Law, (The Hague: Martinus Nijhoff, 1999); M.J. Kelly, ‘Pulling at the Threads of Westphalia: “Involuntary Sovereignty Waiver” – Revolutionary International Legal Theory or Return to Rule by the Great Powers?’, (2005) 10 UCLA J. Int. L. & For. Aff., 361–442. 12 The idea of sovereignty was already familiar to some sovereigns of the time, particularly when allied to theology, insistence on the ‘Divine Right of Kings’ playing a major part, for example, in the English Civil War, 1641–1651, dates which overlap the Westphalia negotiations. 13 L. Gross, ‘The Peace of Westphalia, 1648–1948’, [1948] 42 AJIL 20–41.

Such sentiments do not directly appear in the Preamble to the Covenant of the League of Nations, although it does speak of ‘open, just and honourable relations between nations’, of the ‘firm establishment of the understandings on international law as the actual rule of conduct among Governments’ and of ‘a scrupulous respect for all treaty obligations in the deali...