Sovereignty versus globalization: the International Court of Justice's Advisory Opinion on the Threat or Use of Nuclear Weapons.

• Author: Vachon, Christyne J.

1. 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.

2. GLOBALIZATION VERSUS SOVEREIGNTY

   1. 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 ... [and] the rule loses its force against that nation."(29) In this case, international law essentially does not exist.(31) It has been argued that, in this form, the principles of sovereignty serve as justifications for violations of international law and extreme brutality.(31) Sovereignty allows a country to patrol its borders and to require all foreigners desiring to enter the state to stop at the border and submit to an inspection.(32) When travel by sea on ships was the main mode of transport, nations were better equipped to control flow across their borders.(33) However, with the advent of air travel, violations of sovereignty in the air became a new dilemma.(34) The establishment of laws that regulate commonly scheduled aircraft and seacraft so that stops and inspections were not required for each new sovereign airspace entered solved this dilemma.(35)

   2. Globalization

      Globalization is not a recent phenomenon.(36) The nation-state's independence to control events within in its borders is challenged by transnational corporations, economic globalization and trade, international crime and the rise of global communications and technology.(37) The validity of the nation-state weakens as the gap grows between the capabilities of the individual state and the demands placed on the state.(38) The great appeal of the idea of a nation-state is its "presumed efficacy."(39) Indeed, the capabilities of most developed states far exceed their capabilities of years gone by.(40) States are better equipped to communicate, develop communities, and defend themselves.(41) The question remains whether these capabilities can meet the demand of new threats to the nation's security.

      New security concerns emanate from global threats to human security such as devastation of the environment.(42) Acting alone, individual nation-states can no longer expect to overcome current national and international problems.(43) This process, described as a crisis for nation-states, challenges a state's sovereignty and requires a change from the old way.(44) Globalization requires greater cooperation among nation-states.(45) The World Bank's recent reaffirmation of its commitment to improving the global environment provides evidence of continuing globalization. Pursuant to its articles of incorporation, the World Bank should not take human rights concerns into account when lending money. However, the World Bank indicated that improvements in the global environment directly affect a country's development.(46) Similarly, the recent international effort to save the troubled Asian economies demonstrates the necessity of global aid to secure a country from crisis. As the Asian economies went into a "free fall," the international financial community cringed in fear.(47) The Asian economies ability to pull themselves back together requires international financial assistance.(48) Going forward it is anticipated that the international community, especially foreign banks, will continue to play an impressive role in the Asian economies.(49)

      Globalization increases the need for international institutions to implement limitations and regulations.(50) These institutions assist in a smooth transition from a collection of sovereign states to a global community by establishing universal rules.(51) Judicial institutions, such as the ICJ are key to the development of an international rule of law.(52) The judicial institutions must be able to reliably resolve disputes using the international rule of law.(53) Through resolution of disputes, judicial institutions will also develop new aspects of the rule of law.(54)

      At present, a state needs to accept the jurisdiction of the judicial institution before the rule of law applies to that state. Acceptance of the international decision limits the state's sovereignty.(55) However, as the most viable solution to international concerns, globalization increases in popularity. "Globalization increasingly offers incentives to nation-states to surrender bits of their sovereignty consensually through treaties to fashion advantageous economic arrangements."(56) Once a state accepts jurisdiction and the international rule of law, the national courts should enforce the international decisions.(57)

3. WARFARE AND NUCLEAR TECHNOLOGY

   1. War

      Historically, warfare is characterized by the continuing opposition of offensive and defensive weapons.(58) Successful defense of territorial sovereignty always necessitated a strong military, backed by a nation's resources and economic wealth.(59)

      The ability and means by which a State secures itself has direct, global implications.(60) In the global arena of conflicts between States, a state confronts an adversary in two ways. The first is "dissuasion by defense" whereby the defender assembles a strong army and constructs sturdy battalions.(61) The risks and stakes in the outcome differ for each country involved. If the costs of war are low, a country will act with less care then if the costs are...