International Law's Role in Shaping Modern State Sovereignty • PolSci Institute

International law presents a puzzle. It claims authority over states, yet it has no global police force, no world army, and no central government to enforce its rules. A sovereign state, by definition, holds supreme power within its own territory. So how can a body of law that lacks coercive power genuinely constrain the very states that created it? This tension sits at the heart of contemporary comparative politics. Over the past several decades, international law has steadily introduced new regulations, obligations, and rights that limit what governments can do, even within their own borders. Understanding how this works reveals one of the most significant shifts in how power operates in the modern world.

The puzzle of authority without coercion
Why consent is not the full story
Challenging old norms: the case of state immunity
Heads of state in the dock
When individuals can sue their own governments
How the system actually works
A shift toward a cosmopolitan legal order
The backlash and the limits of acceptance
How the Indian system navigates this tension
A pragmatic balancing act

The puzzle of authority without coercion

The principle of sovereignty, meaning supreme authority within a territory, is a foundational pillar of the modern international legal order. International law itself is built on the concept of the sovereign state. Yet the two ideas exist in constant friction. One of the main challenges to the legitimacy of international law is the claim that it fails to respect state sovereignty, intruding into areas where governments believe they should be free to decide for themselves.

What makes this system unusual is that it largely runs on consent. States voluntarily agree to be bound by treaties and obligations. In theory, this consent protects sovereignty: a government only accepts the rules it chooses to accept. The traditional Westphalian model treats this absolute authority over domestic matters as sacred. But as global governance increasingly prioritises human rights and cooperation, the idea of absolute sovereignty has become harder to sustain.

The reliance on consent contains a hidden complication. When a government signs a treaty, the process of ratifying it may differ entirely from the process of passing ordinary domestic legislation. As legal scholar Oona Hathaway notes, a treaty need not have the support of the political actors who normally make domestic law. This difference can generate tension between national democratic authority and international obligation, even when the state has technically consented.

There is a further twist. Some scholars argue that unlimited freedom to act does not actually safeguard sovereignty at all. In an international system where every nation possesses unrestricted freedom, no single state’s rights are truly secure. By this reasoning, binding rules can protect smaller and weaker states rather than threaten them. Globalisation has made this interdependence unavoidable, since problems like climate change, pandemics, and cross-border crime cannot be solved by any government acting alone.

Challenging old norms: the case of state immunity

One of the clearest examples of international law reshaping established principles is the erosion of state immunity. State immunity is a long-standing doctrine that prevents the domestic courts of one country from exercising jurisdiction over a foreign state. It rests on the idea of sovereign equality: if all states are equal, then no state’s courts should sit in judgment over another.

This doctrine has not stayed fixed. It has evolved from absolute immunity, under which a foreign state could never be sued, toward a more restrictive version that allows claims in areas like commercial activity. More dramatically, state immunity is increasingly challenged by the growth of international criminal law, the recognition of peremptory norms (jus cogens), and the demands of human rights law.

Heads of state in the dock

The question of whether even a sitting head of state can claim immunity has become a major battleground. In 2019, the Appeals Chamber of the International Criminal Court (ICC) issued a controversial decision holding that heads of state have no immunity under customary international law before international tribunals. The ruling arose from Jordan’s failure to arrest Sudan’s then-president Omar al-Bashir, who had been charged with grave international crimes.

The decision sparked intense debate. Critics argued the Court asserted a legal position without the rigorous survey of state practice that customary international law normally requires, leaning instead on the reasoning of earlier tribunals. This split among states and scholars reveals the deeper problem. Some states have affirmed their commitment to cooperation while others have remained silent or openly opposed the Court’s actions, invoking competing interpretations of immunity. The ICC’s most serious threat may not be external political opposition but the slow erosion of its credibility when its decisions lack enforcement.

When individuals can sue their own governments

Perhaps the most striking shift in modern international law is the rise of the individual as a legal actor. For most of history, international law governed relations between states. Ordinary people had no standing to bring claims on the international stage. The European Convention on Human Rights (ECHR) changed this fundamentally.

The Convention created the first international court allowing individuals, not just states, to bring claims against their own governments. Under Article 34 of the Convention, any person, group, or non-governmental organisation claiming to be a victim of a rights violation can lodge a complaint with the European Court of Human Rights in Strasbourg. This gave individuals direct access to an international tribunal, recognising them as having standing to pursue rights under international law.

How the system actually works

The mechanism is carefully structured. An individual can only approach the Court after exhausting all effective domestic remedies and within a set time limit after the final national decision. This reflects the principle of subsidiarity: national courts remain the primary guardians of rights, and the international court acts only as a final check.

Crucially, when the Court finds a violation, the judgment is legally binding. The state must pay compensation and, in many cases, reform its laws or administrative practices. The Convention has been ratified by all 46 Council of Europe member states, covering over 700 million people. The Court treats the Convention as a “living instrument” interpreted in light of present-day conditions, which allows the protections to expand over time. International law scholars widely regard it as the most effective international human rights court in the world.

A shift toward a cosmopolitan legal order

Taken together, these developments point toward something larger than any single court or treaty. They suggest a movement toward a cosmopolitan legal framework, in which certain universal standards stand above national law and protect human beings regardless of where they live. In this vision, the individual, not only the state, becomes a subject of international law with enforceable rights.

The logic of this framework challenges the traditional hierarchy. If a government violates fundamental rights, the affected person can appeal to a body beyond the state itself. The post-war consensus in Europe rested on exactly this idea: that peace and stability depend on law restraining power. Human rights become a floor that every government must meet, a minimum standard rather than a privilege granted at the discretion of the state.

The backlash and the limits of acceptance

This shift is far from settled, and acceptance varies sharply across the globe. Even within Europe, the framework faces a serious challenge. In May 2025, nine European governments, including Italy and Denmark, published an open letter criticising the Court’s interpretation of the Convention, arguing that its rulings on migration had gone beyond the original intentions of the drafters and limited their ability to manage their borders. This grew into a wider coalition of states pressing for change.

For the first time since the Convention was ratified, Europe may formally move toward lowering human rights protections. This backlash is part of a broader strain on multilateral institutions worldwide, with governments increasingly challenging international obligations and the bodies meant to enforce them. The realist view in international relations holds that sovereign states will always, in the end, pursue their own national interest, and that this instinct will repeatedly undermine international law when the two conflict.

How the Indian system navigates this tension

India offers an instructive example of how a major democracy balances global obligations with constitutional sovereignty. The Constitution follows a dualist tradition, meaning international treaties do not automatically become part of domestic law. As scholar Prabhash Ranjan explains, international law does not enter the Indian legal regime until it goes through a process of transformation, typically Parliament passing legislation to implement it. Article 253 empowers Parliament to legislate for giving effect to international agreements.

This design protects democratic accountability. Because treaties generally require legislative incorporation, no international convention can simply override Indian law without the approval of elected representatives. At the same time, the Supreme Court has gradually moved toward incorporating international norms into domestic law where they are not inconsistent with existing legislation. In practice, international law is often treated as part of domestic law by national courts unless there is a clear divergence between the two.

A pragmatic balancing act

India’s approach has been described as deliberate and strategic. It engages actively with global governance while remaining careful to preserve constitutional sovereignty and national interests. Indian courts have used international human rights norms to inform major judgments while grounding their reasoning in constitutional principles. Yet India also remains reluctant to sign treaties that would significantly restrict its sovereignty. This selective engagement allows the country to prioritise commitments that align with its strategic goals while resisting external constraints it views as excessive.

This pragmatic middle path captures the global condition perfectly. International law genuinely shapes what states can do, introducing rights and constraints that did not exist a century ago. But it does so within limits that each state continues to negotiate, accept, or resist. The authority of international law is real, yet it remains contested, uneven, and dependent on the willingness of sovereign states to honour it.

What do you think? Does the rise of individual rights before international courts represent genuine progress toward a fairer global order, or does it risk weakening the democratic accountability that national sovereignty is meant to protect? And as backlash against international institutions grows, should a country like India lean further into global legal integration, or hold firmly to its dualist approach?

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Table of Contents

The puzzle of authority without coercion 🔗

Why consent is not the full story 🔗

Challenging old norms: the case of state immunity 🔗

Heads of state in the dock 🔗

When individuals can sue their own governments 🔗

How the system actually works 🔗

A shift toward a cosmopolitan legal order 🔗

The backlash and the limits of acceptance 🔗

How the Indian system navigates this tension 🔗

A pragmatic balancing act 🔗