48 First, with the democratisation of States and the corresponding development of the protection of human rights within States in the second half of the 20th century, internal sovereignty gradually became increasingly limited and originated in a democratically legitimised legal order. After 1945, international law was seen by modern democracies as a new means of ensuring their democratic development and, given the relationship between human rights and democracy, of anchoring the protection of human rights from the outside through minimum international standards. This was exemplified by Hannah Arendt`s famous idea of a « right to rights », which was the only truly universal human right that could exist, since it was a right that only international law could guarantee. 46 However, it is a misunderstanding to interpret these developments as the end or limitation of sovereignty. They are compatible with modern sovereignty as it has been conceived in the national context since the end of the 18th century and are only signs of its adaptation to new circumstances. Just as modern internal sovereignty became an impersonal function of the state for the people, modern international sovereignty eventually became a function distinct from the legal personality of the state. Just as modern internal sovereignty arose from a limitation of classical and modern sovereignty, modern international sovereignty is a limited version of its classical counterpart. Just as modern national sovereignty is based on law, modern international sovereignty has its roots in international law and not just the other way around. Finally, just as modern internal sovereignty has both an internal and an external dimension, modern international sovereignty is no longer only external, but also has an increasing internal dimension, since international law regulates elements of the internal organization and competence of the State.
In short, modern international sovereignty is more important than ever for the self-determination of democratic states under international law, but to serve the same purpose, its modalities have changed. In 1928, arbitrator Max Huber2 in the case of the island of Palmas (United States v. Netherlands) stated: « Sovereignty in relations between States means independence; Independence from any part of the world is the right to exercise the functions of one State to the exclusion of any other State. The development of the organization of national States in recent centuries and, consequently, the development of international law have established this principle of the exclusive jurisdiction of the State over its own territory in such a way that it becomes the starting point for the settlement of most questions concerning international relations. 3 71 Although there is a historical and conceptual link between these two forms of sovereignty, as discussed above, it is important to distinguish between them in practice. 112 In short, it would be wrong to declare sovereignty by reference to the legitimacy of international law, but, conversely, to declare the legitimacy of international law by reference to sovereignty. By referring to the values that both serve, the authority of international law may be justified in some cases, and thus prima facie restrictions on the autonomy of States associated with it. 80 In conclusion, one of the characteristics of sovereignty is that it is a concept of threshold whose threshold is itself open to challenge. Sovereignty is therefore not a question of degree. Of course, it can be lost as in failed states or gained as in a newly independent state (see Kosovo`s opinion on the break between the transitional constitutional order established by UN Security Council Resolution 1244 of 10 June 1999 [SCOR 54th year 32] and the sovereign order of the independent state; failed states; New States and International Law), but in any case it is either all at once or not at all. In a federal system of government, sovereignty also refers to the powers that a constituent state or republic possesses independently of the national government.
In a confederation, constituent units retain the right to withdraw from the national body, and the union is often more temporary than a federation. [41] 75 According to some authors, sovereignty can only be absolute; it is the classical conception of sovereignty that we find in particular in Bodin and Hobbes. However, the modern concept of sovereignty understands it as intrinsically limited by domestic law, but since the second half of the 20th century also by international law, even without the consent of the sovereign state and therefore beyond self-limitation. While classical international law viewed sovereignty as self-limiting at best, modern international law binds sovereign states in their internal and external dimensions, often without their consent. 2 Max Huber, a prominent figure in international circles, played a leading role in the organization of international justice (Thürer, 2007) Along with sovereignty, i.e. having the highest independent authority over a region or state, internal sovereignty refers to the internal affairs of the state and the place of supreme power within it. [22] A state that has internal sovereignty is a state with a government elected by the people and which has the legitimacy of the people. Internal sovereignty examines the internal affairs of a state and its functioning.
It is important to have strong internal sovereignty in maintaining order and peace. If your internal sovereignty is weak, organizations like rebel groups will undermine authority and disrupt peace. The presence of a strong authority allows you to comply with consent and apply sanctions in case of violation of the law. The ability of leaders to prevent such violations is a key variable in determining internal sovereignty. [23] The absence of internal sovereignty can provoke war in two ways: first, it undermines the value of an agreement by allowing costly violations; and, second, to demand subsidies for implementation so high that they make war cheaper than peace. [24] Leaders must be able to promise their members, especially those such as armies, police forces, or paramilitaries, to abide by agreements. The presence of strong internal sovereignty allows a state to deter opposition groups in exchange for negotiations. It has been said that a more decentralized authority would be more effective in keeping the peace, because the agreement must please not only the leaders, but also the opposition group. Although operations and affairs within a state are relative to the degree of sovereignty within that state, there is always a dispute over who should have authority in a sovereign state. The principle of sovereignty is a primary rule of international law, the violation of which amounts to an act contrary to international law. Italy considers that the principle in question prohibits a State from conducting cyber operations that have harmful effects on the territory of another State, regardless of the physical location of the perpetrator. Italy notes that, according to the same principle, a State may not conduct cyber operations from the territory of another State without its express authorization.
This is without prejudice to emergency situations where necessity implies the applicability of another discipline. 4. Any use of cyberspace, if and when involves illegal intrusion into cyber structures (public or private) controlled by another state, may be considered a violation of the sovereignty of the target state. 113 Since sovereignty is both a source of international law and a source based on international law, it is useful to set out briefly its regime and content in international law and, more specifically, what rights and obligations sovereign status entails. Causing physical damage by cyber means on the territory of another State can easily be described as a violation of territorial sovereignty. For example, a cyber operation against an industrial control system in a petrochemical plant that resulted in a malfunction and subsequent fire would constitute a violation of the territorial sovereignty of the State. In addition to physical damage, loss of functionality of the cyber infrastructure can also be considered and constitute a violation. This includes the use of cryptoviruses to encrypt data and thus render it unusable for a longer period of time.