International Delegation and State Sovereignty

42 Pages Posted: 27 Aug 2007

Abstract

The growing strength and reach of international law over the last half century has deepened existing tensions between the ideals of state sovereignty and international order based on law. State sovereignty requires that states have ultimate and independent authority to govern themselves and those within their territory. Yet states now routinely make legal promises that are perceived to lie in direct conflict with this conception of sovereignty, including delegating to international institutions authority that has traditionally been held exclusively by states. This has given rise to a powerful backlash in the United States and elsewhere. Critics of international law fear that its ever-expanding scope will encroach on domestic law and authority, taking power from local authorities and delegating it to international actors that are far removed - physically, culturally, and politically - from those they seek to govern. This article takes up the challenge to international law posed by these critiques. It argues that the critics of international law err in assuming that states' sovereignty almost always suffers when states delegate authority to international institutions. In doing so, they portray the costs of delegation as larger than they in fact are. Moreover, recent work has lost sight of some of the substantial benefits of cooperation.

Part I of this article outlines the challenge to sovereignty posed by international law and especially international delegation, focusing on recent debates over the influence of international legal commitments on domestic governance. Part II reconsiders the sovereignty costs of international delegation. It argues in particular that when we take account of state consent to delegation, the scope of conflict between sovereignty and international delegation is substantially narrowed. Nonetheless international delegation can be in tension with state sovereignty, and the article outlines the key sources of this tension as a preface to a discussion of the other side of the cost-benefit equation - namely, the potential benefits. Part III of the article turns to these benefits, asking how the intrusion of international law into areas that were once exclusively domestic might be explained and justified. Whether sovereignty costs lead us to question the wisdom of specific delegations hinges on the benefits that balance against those costs. By exploring both sides of the equation in greater depth, we can come to a deeper and more empirically grounded argument about the proper role of international law and delegation in an age of global interdependence. When we do, we discover that international is often more accurately seen as an exercise of state sovereign authority than a diminution of it.

Keywords: international law, sovereignty, consent

JEL Classification: K33

Suggested Citation

Hathaway, Oona A., International Delegation and State Sovereignty. Law and Contemporary Problems, January 2008. Available at SSRN: https://ssrn.com/abstract=1009600

Oona A. Hathaway (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-4992 (Phone)
203-432-1107 (Fax)

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