Safeguarding a liberal system of states : Reinterpreting states' freedoms in increasing interdependence

Abstract

A crucial issue for international law is how to deal with situations where one state's policies affect another state's domestic affairs. The traditional answer is that international law is a liberal system centred on relative sovereignty, in which states' freedom to exercise their sovereignty (positive freedom) is inherently limited by the need to protect other states' domestic affairs against interference (negative freedom). Ideally, when facing global problems, states co-operate with each other to limit their positive freedom. However, states often fail to agree on bilateral or multilateral co-operative responses or only agree on a lowest common denominator that provides an inadequate response. This creates tension between states' positive and negative freedom and exposes states to the adverse effects of other states' policies. Two transboundary problems that feature prominently on the international agenda - climate change mitigation and macro-financial instability - serve as case studies to examine whether international law protects states against such adverse effects. The case studies reveal how international law fails to protect states' negative freedom against the adverse effects of other states' actions or omissions. The starting position under the Lotus Principle is the freedom of states to act. As the case studies demonstrate, limits on this freedom in general and specialized international law are insufficient or inadequate to avoid adverse effects. Moreover, trade liberalization obligations restrict states' ability to respond unilaterally to transboundary problems when these responses potentially have a negative impact on trade. Rather than advocating fundamental changes to the international order, the thesis proposes an evolutionary process of rebalancing existing rules and principles on the exercise of state sovereignty. This rebalancing can take place through dialectical processes of reinterpretation, in which states, non-state actors and international institutions interact to argue and refine the limits on the exercise of state sovereignty. The thesis identifies locality, reasonableness and good neighbourliness as interstitial norms that can guide the reinterpretation of the existing rules and principles on the exercise of state sovereignty. The goal of this reinterpretation is to strengthen international law's structure as a liberal system of states that ensures co-existence and co-operation in a pluralistic society.