The role of the doctrine of state sovereignty in the development of international law. Illustrate your essay with specific examples.

This essay will look to critically evaluate the role of the doctrine of state sovereignty in the development of international law and as to what extent the doctrine of state sovereignty is crucial to the effective operation of international relations.
The doctrine of state sovereignty concerns the political and legal idea that ultimate authority is solely encapsulated in a state free from external (international) control. However, despite the nature of the doctrine of state sovereignty, English Courts have generally stated that international law should be incorporated into our national law under the doctrine of incorporation, according to numerous decisions between 1737 and 1861 including the Barbuit’s case and many other decisions decided within this period. But, in contrast, R v. Keyn was said to demonstrate that the doctrine of incorporation should be abandoned, although that was only because the court was said to have been unclear as to whether there was a clear rule of international law permitting a state to exercise jurisdiction over ‘aliens’ for criminal offences committed in its territorial sea; although this decision was effectively reversed by Section 3 of the Territorial Waters Jurisdiction Act 1878.
This may explain why international law is only a part of English law in so far as the rules put forward internationally for a community of nations have been accepted by this country, because of the scope of the doctrine of state sovereignty, and are recognised by our national courts as having been transformed into English law under the doctrine of transformation, according to decisions including West Rand Central Gold Mining Co Ltd v. R and Chung Chi Cheung v. R. However, even these cases are not completely unequivocal and still might support the doctrine of incorporation, according to the decision in R v. Secretary of State for the Home Department, Ex parte Thakrar. This is despite the fact that the ability of English Court to apply rules of international law directly may be limited by an earlier decision since the English Courts are bound by the operation of the principle of stare decisis (precedent). Nevertheless, fortunately in Trendtex Trading Corporation v. Central Bank of Nigeria it was held that, since international law knows no doctrine of stare decisis, English Courts are not precluded from applying new rules of international law that have evolved from previous decisions.
Therefore, although the doctrine of incorporation is currently held by English Courts to be most appropriate when it comes to the development of international law, the courts generally apply rules of international law whether they are derived from custom or from treaty directly, according to the decision in The Zamora amongst others. However, international law differs from the rules of foreign legal systems in so far as it does not require the law to be proved as a fact whilst the rules of foreign legal systems do. Nevertheless, the enforcement of rights acquired under international law may be precluded by an act of state under the doctrine of state sovereignty since a further qualification for this arises from the practice of the English Courts concerning how they go about accepting information from the Crown in matters which fall within the executive sphere. This is because, in these cases, the responsibility for ensuring a court’s decision conforms to international law rests with the national executive and not with the court.
Furthermore, in spite of the nature of the doctrine of sovereignty, if the provisions of a British statute conflicts with rules of international law those international provisions must still be applied by English Courts because of the doctrine of Parliamentary Sovereignty, according to the decision in Mortensen v. Peters (a decision on the Herring Fishery (Scotland) Act 1889). According to the Foreign Office this decision was thought to be in conflict with international law, but the Court of Sessions does not appear to have taken this view and this view was later followed in Polites v. The Commonwealth. Furthermore, regarding the relationship between statutes and treaty obligations, this view can also be illustrated by the decisions in Collco Dealings Ltd v. IRC and and Cheney v. Conn. However, the possibility of a conflict arising between the two systems as a result of the application of any statute is mitigated by the general rule that, where possible, statutes must be interpreted so as not to conflict with relevant rules of international law, according to the decisions in Le Louis and Madrazo v. Willes.
The doctrine of state sovereignty must also be weighed against international treaties when considering the development of international law and the effective operation of international relations. In the UK the power to make and to ratify treaties belongs to the Crown, so any international treaty which requires a change in English law to make that law conform with the provisions of the treaty, and thus ensure those provisions are cognisable and enforceable in the English Courts, requires the necessary legislation to be enacted nationally. If this were not the case, by entering into the effect of any treaty the Crown would be effectively legislating without the consent of parliament, according to the decisions in The Parlement Belge and Re Californian Fig Syrup Co’s Trade Mark and the more recent decision in Philipp Bros v. Republic of Sierra Leone & Commission of the European Communities. Even if such legislation is not enacted, a treaty can still be binding upon the UK. This means, consequently, that failure to enact necessary legislation may place the UK in breach of international law because a state cannot rely upon defects in its own law as a defence to such a claim.
Generally, treaties under international law must be interpreted in good faith in accordance with the ordinary meaning given to the terms of the treaty in view of its object and purpose, despite the nature of the doctrine of state sovereignty. Therefore, for example, the articles of the ‘Vienna Convention on the Law of Treaties’ are not arranged hierarchically, but were to apply as an integrated or interdependent whole so that the basic approach most generally favoured is one which has primary regard for the textual meaning of each treaty. However, English Courts cannot interpret treaties that are not incorporated by statute into municipal law. This is because the interpretation of such treaties and decisions as to whether or not they have been complied with are matters exclusively for the Crown in its conduct of foreign relations. However, in exceptional circumstances courts may interpret a treaty if its provisions have been incorporated into, for example, a contract that may refer to a particular treaty and its terms as part of the factual background against which a particular issue is to be determined, according to the decisions in JH Rayner (Mincing Lane) Ltd v. Department of Trade & Industry and Littrell v. United States of America. Furthermore, within the scope of European Law, the European Court of Justice has reasoned, that if the EC Treaty is to create a Common Market and ever closer union among the continually increasing number of European Member States were ever to be realised, individual Member States should not look to introduce unilateral changes under the doctrine of state sovereignty and Community measures should not be made subject to the varying requirements of the national law in each Member State.
In conclusion, whilst it could be argued that the doctrine of state sovereignty plays a crucial role in the development of international law and the operation of effective international relations, if the UK and other nations were to always invoke this doctrine it would make it much more difficult for different countries to formulate effective international relations. This means the doctrines of incorporation and transformation are perhaps even more important for the development of international law and the effective operation of international relations because otherwise, for example, companies would have to adjust their business practices to operate under different legal systems that exist in different countries, so clearly it is much better when there is a community structure of international law to enhance the operation of international relations and avoid such problems. Therefore, it is in fact arguable that more is done to help international relations when a country fails to invoke the doctrine of state sovereignty than when they actually choose to use it.