5.3.7  National Compliance with International Law

(This is an archived extract from the book Patterns of Power: Edition 2)

It may seem that there is a potential conflict between national sovereignty and international law, but this is largely a matter of semantics.   Using the EU model as a template (5.3.5.2), sovereignty is pooled – not lost – because national legislatures can make decisions whether to comply with international law or whether to secede.  They retain this freedom and, as long as they remain signed up, they add their weight to the collective authority – strengthening it and increasing the protection that it offers every country, including their own.

There are different types of co-operative relationship between national and international law:

·      Countries can adopt international law by making references to it in their own laws; e.g. the UK’s treatment of European Human Rights (5.3.5.4). 

·      They can sign international treaties, such as those on human rights (5.3.6.2), to bind themselves and others to court jurisdiction.

·      They can align their legislation so that it is compatible with international law, without explicitly according supremacy to the latter.  For example, the ICC’s role is complementary to national courts: it only prosecutes “when States are unwilling or unable to act”.  Countries can preserve their sovereignty by legislative compatibility with the Rome Statute and by adopting compatible operational rules for their armies. 

·      It is also possible for international law to have supremacy over national law and to be enforced without the agreement of the country concerned.  UN Resolution 1970 in February 2011,[1] referring Libya to the ICC, was an important precedent.[2]  Libya was not a signatory to the Rome Statute but the subsequent Resolution 1973 authorised the establishment of a ‘no-fly zone’, which involved the use of military force.[3]  Since the intervention in Libya there is a de facto ‘Responsibility to Protect’ doctrine which allows the UN Security Council to authorise armed interventions against governments which are killing their own people.[4]  Such interventions then have a legal status, and the troops involved are representing the UN rather than their own countries of origin.[5]

Whichever approach is chosen, the effect is that hierarchies of rules can be created, from global to local, without meaningful loss of national sovereignty.  Judgements on individual cases can gradually allow for local and regional differences and countries retain their ability to opt out.  The resulting network of rules gains in strength as more countries agree to be bound by them.  An interconnected hierarchy of legal powers is both more flexible and more integrated than having separate ‘islands’ of power in a world that is increasingly both ‘joined up’ and pluralist.

© PatternsofPower.org, 2014