Extract
Sovereignty versus globalization: the International Court of Justice's Advisory Opinion on the Threat or Use of Nuclear Weapons.
I. INTRODUCTION
In recent history, the interdependence among nations increased.(1) Despite the changing world, sovereignty remains a central issue in international affairs.(2) As nation-states conduct their affairs, traditionally their primary concern has been for the independence of their statehood or sovereignty.(3) Despite such concerns, issues of war and peace drove nation-states to build alliances.(4) Modern developments, however, emphasize global concerns placing globalization at the forefront and national sovereignty in peril.(5) With increased globalization of the world community, the efficacy and, consequently, the validity of the individual nation is greatly weakened unless it acts in concert with other nations.(6) Thus a sovereign state must establish a balance between self-determination and independence on the one hand, and the necessary development and strengthening of the international community on the other.(7) A law, universally accepted by the community of sovereign states, will define this balance,(8) Key to the development of an international rule of law, judicial institutions such as the International Court of Justice (ICJ) craft customary law into broadly accepted regulations.(9) Increasing globalization and decreasing sovereignty impact the international legal debate(10) on the legality of nuclear weapons. Before the end of the Cold War, nuclear weapons represented a necessary evil for nation-state security. However with the advent of increased globalization, nuclear weapons may not be such a necessary or desired security device.(11) The threat or use of nuclear weapons raises a number of global threats including: human rights, the environment,(12) and economics.(13) In fact, with the increase in global concerns of nuclear weapons, the General Assembly request for the advisory opinion of the ICJ on the legality of the use or threat of nuclear weapons represented a perfect opportunity for the Court to set the standard on the illegality of nuclear weapons. Each global threat involves the tug o' war between globalization and sovereignty.(14) The sovereignty of the nation-state diminishes when international threats become equally important as national, state, and local matters.(15) The International Court of Justice addressed these global threats as part of its advisory opinion on the legality of the threat or use of nuclear weapons as requested by the General Assembly.(16) The implications of the ICJ's decision vary.(17) However, those issues unanswered by the Court are even more compelling than what the Court articulated.(18) This piece explores the relationship of the nuclear debate to the globalization versus sovereignty debate. Central to this exploration is the ICJ's advisory opinion on the legality of the threat or use of nuclear weapons and its discussion of global concerns. Part II explains the concepts of globalization and sovereignty. Part III discusses nuclear weapons in general. Part IV explores the ICJ's advisory opinion and any other relevant opinions and agreements. Finally, Part V analyzes the implications of the ICJ decision, the issues articulated in the decision and those that are not. Part VI concludes. II. GLOBALIZATION VERSUS SOVEREIGNTY A. Sovereignty In the sixteenth century, a nation-state's concern for it's sovereignty grew out of the divine law of kings and the monarchical struggle in Western Europe to impose the supremacy of the king on the empire.(19) The Treaty of Westphalia of 1648(20) marked a turning point in history. The supremacy of the state displaced the church and the state asserted its absolute authority within its territorial boundaries.(21) Furthermore during the late eighteenth century, some states experienced democratic revolutions which transposed the political legitimacy of the country from the king to the people.(22) This process gradually occurred in more and more states.(23) Finally, modern constitutionalism made its world debut in the Charter that established the League of Nations and later the United Nations Charter.(24) Since, the glory of sovereignty of the nation-state continues to inspire the birth of new independent political units.(25) "Developing countries that were formerly colonies are particularly sensitive to the possibility that relinquishing any of their sovereignty would subjugate them to a new form of colonialism."(26) The sovereignty debate includes issues such as the meaning of sovereignty, the circumstances that characterize sovereignty depending on the time and geography, and the changing national and international political structures.(27) By definition a state is a grouping of individuals who are entirely subject to their "own sovereign legal authority."(28) The most extreme sovereignty, is strict national sovereignty. "[N]ations are sovereigns over international law.... international law exists only to the extent that each nation decides to obey it ... [and] a nation may change its mind at any time ...See the full content of this document
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