Sovereignty In International Law

Under international law today sovereignty can be defined as “the legal status of a state that is not subject within its territorial jurisdiction to government, foreign state or foreign law other than public international law”. A state furthermore, has jurisdiction over all individuals within its territory. However, in certain instances it will not exercise this jurisdiction. There is no clear indication of what defined territory is, but a provision was laid down in case law. In the North Sea Continental Shelf case , the justice held that there can be no set definition on what land frontiers of a state must be. He also said that it is not a necessary antecedent that a state has clearly defined or have undisputed borders . It is also not a

In terms of sovereign immunity courts must decline to hear cases against foreign sovereigns. This type of immunity applies to the head of a foreign state, government of a foreign state as well as specific governmental departments of a foreign state. It is important to draw a distinction between the terms iure imperii and iure gestonis, with the latter being a form of restrictive sovereignty and the former, absolute sovereignty which states that a foreign state and its agents are immune from any types of suits instituted against them. With regards to the courts there has been a divided opinion as to whether or not heads of state have immunity form international crimes that are committed. On the one hand, international courts have said that there is no such immunity available whilst, the position in the International Court of Justice differs allowing for heads of state immunity under customary international law.

In the case of Pinochet it was argued that immunity is only applicable if the acts that have been committed were part of the official capacity and duties of the head of state. Thus, no head of state has the authority to torture any individuals as it amounts to a violation of jus

Following this decision, article 46A Bis too was adopted providing serving head of states as well as senior government officials immunity. The adoption of Article 46A Bis and the decision of the ICC reveal the tension that exists between the principles of sovereignty and furthermore, the duty to prosecute those that commit these crimes. The actions of the AU in this regard is seen to be conflicting with the rule in both customary international law and treaty law, that head of state immunity cannot be raised when an individual is alleged to have committed a crime under international law. The AU’s decision on Africa’s relationship with the ICC emphasizes the fact that it is the first time that a sitting head of state and his deputy have had criminal proceedings brought against them in an international court. Thus, the decision further requests that the trials of Kenyatta and Ruto be suspended until they complete their terms of office. The actions depicted by the AU points to the unwillingness of African states to hold individuals in positions of power accountable for gross human rights violations on a continent where the rights of victims are not