Examine the nature of world order, the concept of state sovereignty, and the principles of international law

What this dot point is asking

NESA wants you to know what "world order" means, what state sovereignty is, what the sources of international law are, and how state sovereignty is qualified in the modern system. Expect a 4-6 mark short answer or as the opening paragraph of a Section IV extended response.

The answer

What is world order?

World order is the activities and relationships between the world's states and other significant non-state actors, through which the operation of the international system is regulated. It includes military relationships, economic and trade relationships, diplomatic relationships, and the legal frameworks that bind them together.

The contemporary world order is shaped by:

• the Charter of the United Nations 1945;
• bilateral and multilateral treaties;
• customary international law;
• general principles of law recognised by civilised nations;
• judicial decisions of international courts;
• the writings of qualified publicists (article 38 of the Statute of the International Court of Justice).

State sovereignty

State sovereignty is the principle that each state has supreme authority within its own territory and that no external authority may interfere with the conduct of its internal affairs without its consent.

The principle emerged from the Peace of Westphalia 1648, which ended the Thirty Years' War in Europe. Westphalian sovereignty rests on three pillars:

• territorial integrity;
• non-intervention in domestic affairs;
• legal equality of states.

The principle is reaffirmed in article 2(1) of the Charter of the United Nations 1945 ("The Organization is based on the principle of the sovereign equality of all its Members") and in article 2(7) (no intervention in matters essentially within the domestic jurisdiction of any state).

The Montevideo Convention 1933

The Montevideo Convention on the Rights and Duties of States 1933 article 1 codifies the criteria for statehood:

1. a permanent population;
2. a defined territory;
3. a government;
4. the capacity to enter into relations with other states.

Recognition by other states is not strictly required under the declaratory theory of statehood, but is significant in practice.

Sources of international law

Article 38 of the Statute of the International Court of Justice 1945 enumerates the four sources:

• Treaties. Written agreements between states governed by the Vienna Convention on the Law of Treaties 1969. Australia ratifies treaties as an exercise of executive power; treaties only become Australian law through implementing legislation.
• Customary international law. Practice of states accepted as law (opinio juris). Examples: the prohibition on torture, the rules of immunity of diplomats.
• General principles of law. Principles common to most legal systems, e.g. good faith, estoppel, due process.
• Judicial decisions and writings. As subsidiary means for determining rules of law.

Hard law and soft law

Hard law is binding on states: treaties to which they are party, customary international law, and rules of jus cogens (peremptory norms from which no derogation is permitted, e.g. the prohibitions on slavery, genocide, torture).

Soft law is non-binding but influential: UN General Assembly resolutions, declarations such as the Universal Declaration of Human Rights 1948, ministerial declarations and codes of conduct. Soft law often crystallises into hard law over time.

Limits on state sovereignty

Sovereignty is not absolute in the modern world. Limits include:

• treaties states have ratified (e.g. the World Trade Organization Agreement 1994);
• the United Nations Charter, particularly Chapter VII (Security Council enforcement);
• jus cogens norms;
• universal jurisdiction for the most serious international crimes (genocide, war crimes, crimes against humanity, piracy);
• the responsibility to protect (R2P) doctrine endorsed by the UN General Assembly Resolution 60/1 (2005), which holds that the international community has a responsibility to act when a state is manifestly failing to protect its population from genocide, war crimes, crimes against humanity or ethnic cleansing.

Practical illustrations

• Russia's invasion of Ukraine in February 2022 was a clear breach of article 2(4) of the UN Charter (the prohibition on the use of force). The UN General Assembly condemned the invasion by Resolution ES-11/1 (2 March 2022).
• The International Criminal Court issued an arrest warrant for Vladimir Putin in March 2023, demonstrating that sovereignty does not shield heads of state from international criminal jurisdiction for the most serious crimes.