The Common Law and National Sovereignty

Alun A PREECE, MA, LLB (Camb), LLM, Grad.Cert.Ed. (Qld) Lecturer in Law, University of Queensland1 A paper delivered to the Annual Conference of ILTA (the Irish Law Teacher's Association) in Galway, Ireland, 25-27 April 2003 and in revised form to the Law School of Marquette University, Milwaukee, Wisconsin, USA, on 7 May 2003. (Some of the preparation of material comprised in this paper was carried out in 20012003 during periods when he was an academic visitor at the Law Program at the Australian National University, Research School of Social Sciences.)

Abstract Both the common law and the concept of national sovereignty have faced increased challenges from the growing impact of international and supranational law in the latter part of the 20th century. This paper will argued that it is not surprising that both face somewhat similar challenges, given that the common law evolved in the Middle Ages essentially as a unique national system in contrast to the spread of Roman Law based systems in most of the rest of Europe. Consequently, the common law system was intrinsically more favourable to concepts of national sovereignty and the latter was generally asserted earlier and more successfully in common law jur,isdictions. Certain common factors, notably geographic isolation contributed strongly to this. Even after the general European acceptance of the concept of national sovereignty at the Peace of Westphalia in 1648, a common law system generally carried with it a more pronounced assertion of national sovereignty. An example is a generally dualist as opposed to monist approach to international law. Another is a generally more reticent approach to constitutional entrenchment of bills of rights, or surrender or national sovereignty to international institutions or organisations.

INTRODUCTION
This paper is in three parts, firstly an account of the history and development of the common law, coupled with commentary on its interrelation with the rise of the concept of national sovereignty in England, secondly a similar account of national sovereignty in general, and finally a comparison and discussion of their interrelation..

This article was written and the associated research was conducted in the authors capacity as a lecturer at the Univeristy of Queensland

2 Immanuel Wallerstein2 divided modern political and economic development into 4 periods: 1450-1640 decline of feudalism 1640-1815 beginnings of the industrial revolution 1815-1917 period of British pre-eminence, characterised largely by the Pax Brittanica 1917 onward, period of United States pre-eminence, characterised largely by the Pax Americana

These periods were preceded by an era of about half a millennium when feudalism was the dominant force. It is worth bearing in mind this analysis in relation to the following discussion. The period of decline of feudalism, 1450-1640, largely coincides with the end of the age of empires and the rise of national sovereignty in Europe, culminating in its recognition at the Peace of Westphalia in 1648. The term 'common law' may refer to: (a) the English legal svstem developed in, applicable to and common to England (and Wales, but not Scotland); (b) that part of English law which was created by the king's courts, or common law courts (and developed as case law) in England from about 3 the 12th century, rather than 'statute law', or the law enacted by Parliament as opposed to the body of rules and principles of equity, as established by decisions of the courts of equity (or, as they were otherwise known, Courts of Chancery) which began to be developed from around the 14th century; (c) the modern usage, which includes English cases and statutes, including principles developed and established by common law courts and the courts of equity; and (d) that part of English law which has been 'received' by a given jurisdiction and which applies, therein, either through colonisation, or via unilateral and voluntary enactment by that jurisdiction; or (e) it may be used in the discussion of comparative law as the title of one family of legal systems into which the legal systems of the countries of the world may be classified. This family is generally taken to include English law and the law of those countries and territories whose main original source was English law. This could either be through settlement (such as in the US, Canada, Australia and their consitituent states) or colonisation as in India, Malaysia, Singapore, Hong Kong and much of Africa. It includes jurisdictions who have as chosen to retain their common law system on severing links with England, such as Ireland and
In The Modern World System 1, New York Academic Press , 1974 England is probably particularly fortunate in that feudalism, which began to rapidaly outlive its usefulness as the state of the art system of political, legal, constitutional economic and social organisation in the late Middle Ages, declined earlier than in other places owing to the promulgation of the Statute Quia Emptores by Edward I and his parliament in 1290, which by preventing the formation of any new feudal relationships, ensured the gradual decline of the system.
3 2

3 the United States, or such as Israel, whose legal system is generally classified as such, as it has a greater similarity in operation to common law systems than the Roman law based civil law family. There are some systems which are described as hybrids as they are the product of major influences from both common and civil law systems. These include Louisiana and Quebec, whose state or provincial law is largely based on civil law concepts, form part of a federal system where the common law is otherwise dominant, and Scotland. They also include Sri Lanka and South Africa, where there is an amalgam of the common law and Roman-Dutch law deriving from earlier Roman-Dutch colonisation and Pakistan, where the common law faces the encroachment of Islamic law.

HISTORICAL DEVELOPMENT OF THE COMMON LAW

The origin of the English common law is generally ascribed to Henry II, who reigned from 1154-1189,4 through his establishment of Royal Courts centralised in London but also travelling the country in the form of Assizes. Prior to this English law consisted of the underlying Anglo-Saxon law based on germanic and nordic custom, overlaid with the feudal system imposed by William the Conqueror after 1066, and canon law emanating from the church. In 55 B.C. Julius Caesar had visited the South of England but no Roman conquest took place until 43 A.D. when Britain south of the Scottish border became a province of the Roman Empire. Prior to this time there was no established legal system, the country being occupied by tribes, which were primitive from the legal point of view. Early in the 4th century Christianity became official religion of Roman Empire, giving rise eventually to the influence of canon law. After the Romans left early in the 5th century, essentially no enduring traces of Roman Law remained after the many successive invasions by Angles, Saxons, Jutes, Danes and Vikings Canon law also disappeared with the Church except in the case of the Celtic Church in Wales and Ireland, which being cut off from Rome became much more liberal. It did not come under Roman control again until the 8th century as a result of the decision taken at the Synod of Whitby. England had been reconverted by Augustine at the end of the 6th century, which was an age of saints in Wales. Consequently, English law really starts in pre-Norman Anglo-Saxon times. Prior to the Roman conquest in 43 A.D. various tribes occupied the land. Although there is evidence of a comparatively advanced civilisation, for the times, in terms of everyday domestic life going back several thousand years5 before that there is no evidence of any organised legal system. Accordingly, beyond the obvious existence of tribal chieftains no great variations of legal status based on hierarchy could have existed. The Roman law that came with the Romans also departed with them, so there was no significant impact of it in Anglo-Saxon times except through the canon law of the reThe first of the 8 kings of the Planataganet dynasty which lasted for nearly 250 years until the deposition of Richard II in 1399. 5 At Scara Brae in the Orkneys internal latrines with stone pipe work and quite sophisticated stone furniture has been found.
4

4 established church after the 6th century. It seems it was a system lacking great differentiation of legal status based on caste or class, at least compared to other countries at that time. There were slaves, although these were almost exclusively prisoners of war or persons whose status had been degraded as a form of punishment.6 There were some privileges attaching to the Status of a Thegn or Royal Thegn or to freemen as opposed to those obliged to work the soil and yield up a share of its produce, and the Church has some immunities. However, the King was more of a first among equals than a pre-eminent overlord, being seen more as the King of the English than the King of England. Appeal was possible from Hundred Court to Shire Court and from there to the King. Both these courts were founded as the assembly of all freemen rather than being dominated by a lord. AngloSaxon law developed in England but divisions arose after Viking settlements between the North East, the Danelaw and the rest. However, the main influence on English law was teutonic/germanic/norse customary law. There was a secondary influence of church canon law, but that was largely confined to certain areas such as family law and succession to property. Also, unlike some other parts of Europe, such as France, where following the decline of the Roman Empire the Romanised population and Germanic elements lived under different systems of personal laws, England had no history of different personal laws. The legal division of England between the Danelaw in the North East and the rest, after Viking invasion and settlement was territorial, not based on tribe or race. The legal traditions in other parts of the British Isles, such as Wales, were also at this time based far more on notions of reasonable equality under the law than was the case in many other places. In Wales the independent law code of Hywel Dda (Howell the Good) was promulgated in 836, but had little if any influence on the development of English law. He unified Wales briefly but generally its control was divided between 3 or 4 main princes. The Norman Conquest The Norman conquest brought about a more formally hierarchical feudal structure, with the King at the top of the pyramid, with originally about 170 tenants in chief holding the land directly of him, mostly on the military tenure of knight service, through lesser mesne lords down to the free tenants and ultimately the unfree tenants or villeins obliged to work the soil and yield up a share of its produce. The idea of an assembly of tenants in chief was a precursor of the House of Lords. This eventually brought with it a system of manorial courts with jurisdiction over each lords manor or fiefdom. The lord enjoyed the privilege of being unable to be sued in the Lords own court as did the King as lord in the Royal Courts, hence the birth of the legal concept of sovereign immunity. However, there were no special privileges attaching to the nobility, or any particular level of the nobility, as a class beyond this and the
6

Taswell-Langmeads Constitutional History, 11th edition, p.13.

5 rights attaching to feudal tenures, which included the inability of the tenant to deny the lords title. This principle carrying over into the law of landlord and tenant to this day, whereby denial of the landlords title brings about an automatic forfeiture of a lease. Initially, the hundred and shire courts remained assemblies of freemen but the royally appointed Sheriff who presided over the shire court became far more powerful and influential than the presiding officers in Anglo-Saxon times. The establishment of this independent judicial system made justice less arbitrary and subject to the whims of the king. The development of the common law also fostered an independent legal profession which became a bulwark against the importation of Roman law. Henry IIs ban on English students studying abroad in 1167, a byproduct of his quarrel with the church, also removed what would a potent source for the importation of the new Roman Law whose teaching was spreading from Bologna to other European universities. This was a major factor in preventing reception of Roman Law, a measure prompted by his feud with the Archbishop of Canterbury, Thomas ABeckett, over the rights of the Church,7 because he wanted to prevent the exiled Archbishop from gathering support. Less than half a century after the establishment of this system attempts at arbitrary rule by Henry IIs son King John led to the barons and the church combining to force him to sign Magna Carta in 1215. This furthered the idea of equality under the law by granting rights to all freemen. . This brought into being the concept of assemblies of freemen. As these rapidly became unwieldy given the numbers involved as the feudal system expanded, the concept of representation was born. Consequently, after 1066 after the Norman Conquest William the Conqueror imposed in England the most comprehensive feudal system in Europe. His conquest did not extend to most of Wales until 1282, but he posted the so-called Marcher Lords on the border with Wales, who were authorised to make private war in this area. Tenants in Chief held land directly of the king, usually under a military tenure, but there were also spiritual and more esoteric tenures. The tenants in chief were originally the Norman barons who were William the Conquerors main supporters in the Norman conquest, and held sway over large tracts of England. All tenures carried regular obligations owed by the tenant to the lord e.g. supplying specified numbers of Knights, archers, horsemen etc. for so many days in the year, saying masses for the lords soul, or carrying the sword at the coronation. Also there were duties of fealty and homage. At the bottom of the feudal pyramid were the serfs - distinction between free and unfree tenures, serfs or villeins were unfree as there actually had to work themselves persons occupying intermediate positions were mesne lords, they were tenants of a lord but lords of tenants. There were also onerous incidents of tenure, e.g. surrendering a years profits when a tenant who was an infant came of age, including aids, contributing to the lords ransom if he was taken in battle, to the dowry for lords daughter, or to the cost of
This is the first of many attempts by English kings in the direction of establishing national sovereignty. None proved successful to a major degree until Henry VIII successful confrontation with Rome from 1529-1540.
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6 knighting his eldest son. Abuses of this by lords and particularly King John demanding all manner of aids was a major factor leading to Magna Carta in 1215 At the end of the eleventh century there was little to distinguish the law of England from that of northern France or Germany. Though England had been a Roman province for three centuries, the invasion of the Angles and Saxons led to the complete disappearance of the Imperial law, and the Anglo-Saxon law of England appears as merely a species of Germanic folk-law. The codes of Ethelbert, Ine and Alfred were all of the same scope as the continental leges barbarorum, their only distinction being that they were written in Anglo-Saxon and not in Latin. The substance of the law consisted in England as elsewhere in northern Europe mainly of unwritten customary law, which was supplemented or replaced in some particulars by canon law; and the disintegration which was caused by external aggression and the growth of the feudal system led to the same pattern of regional territorially based groups of customs which we find at the same period on the Continent. This had replaced the system of personal laws that had existed in the immediate aftermath of the fall of the Western Roman Empire. The immediate effect of the Norman Conquest was to heighten the trend towards particularism by increasing the number of franchise and manorial courts, and by a reintroduction of the principle of personality of law in favour of the Norman section of the community. At the same time, it gave to England alone in Western Europe a strong central government capable of imposing a unified system upon the whole country should it be expedient to do so. In the early 12th Century there were the first beginnings of a civil service under Henry I (reigned 1100-1135). In the late 12th century Henry IIs establishment of the Common Law Court System led to development of independent legal profession centred on the Inns of Court in London, which proved a mainstay of the common law in later times. Under Henry II the royal courts began to encroach on the jurisdiction of the feudal courts, and by the end of the thirteenth century the process of constructing a national law had been carried a long way.

Decline of the feudal system In the second part of the 12th century Henry II, who reigned from 1154-1189, had established Royal Courts with comprehensive jurisdiction, which not only sat at Westminster, but through the practice of the assizes, sent judges to tour the country at regular intervals, so that the Kings writ ran throughout England. This brought about the establishment and development of the common law and gradually undermined the importance of the manorial courts. Only the King had sovereign immunity in the Royal courts and even his officers could be brought to book by means of the prerogative writs of mandamus, certiorari and prohibition. This set in train the process of development of ever increasing equality under the law, as all others were theoretically equal before the law in the Royal courts, and also led to the establishment of the principle that the King and government were subject to the law. The death knell of the feudal system was, however, to be the Statute Quia Emptores,

7 promulgated in 1290 by Edward I, the next strong king after Henry II to make a major mark on the development of the English constitution and legal system. By prohibiting subinfeudation, the legislation ensured that the feudal pyramid could no longer expand or renew itself by the creation of new rungs in the feudal ladder below the level of the tenants in chief who held directly of the King.. As there was a constant process of attrition through the termination of land holdings by escheat to the lord for want of heirs, or forfeiture of the estate to the lord on conviction of the tenant for felony or to the king on conviction for high treason, the feudal system of landholding was henceforth doomed. The process was accelerated by the demise of almost a third of the population in the Black Death in 1349-51. This event also caused an extreme labour shortage that gave rise to a whole new class of hired labourers. There were also extensive forfeitures of the estates of the nobility during the Wars of the Roses that raged intermittently from 1455-1485. The result was that almost freeholders8 held directly of the King by the 16th century. The formal abolition of the feudal system took place at the Restoration with the passage of the Tenures Abolition Act 1660, confirming a resolution of the Long Parliament of the Civil War period. Henry II failed to conquer most of Wales despite securing the excommunication of themain Welsh leader, Owain Gwynedd. He is also the first English King to become involved in Ireland, in 1169, when a military expedition was despatched, supposedly in at attempt to pacify warring clans. Abuses of the legal system by the evil King John both as regent for his absent brother, Richard I during the 1190s and after his accession in 1199, led the Barons and leading Churchmen to force him to sign the Magna Carta in 1215 at Runnymede. Most of the charter is concerned with detailed aspects of the feudal system, but it buttresses the Common law through its guarantees of a right of access to an independent and incorrupt Court system and of due legal process. In the late 13th century the Provisions of Oxford 1258 and Statute of Westminster 1285 ended the initial flurry of productivity and creativeness in the Common law by restricting the ability of Common Law Courts to invent new writs leading to greatly increased numbers of dissatisfied litigants. These appealed directly to the King who King handed over petitions to Lord Chancellor. Initially these were decided on an ad hoc basis, but gradually the procedure for their handling developed into a formal court procedure. This court became known as the Court of Chancery presided over by the Lord Chancellor, with an office to receive petitions. This area of law became known as equity and was a potential threat to the common law, as it was more subject to royal influence, there being no role for the jury, and could ultimately prevail over the common law through its power to imprison the defendant for contempt. It was so used during the struggles of the 17th century between King and Parliament. This would have been a possible route for the erosion of the common law through the introduction of Roman law, but instead equity evolved as a complementary aid to the common law. Three principal elements can be traced in the common law as it had developed by the end of the thirteenth century:
Copyhold, derived from the unfree tenures of the villains, survived until assimilated with freehold by the comprehensive property law reforms of 1925.
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8 1. The foremost place must be attributed to the initiative of the Curia Regis itself. There is nothing in the contemporary history of continental law comparable to the creative activity manifested by the king's court in the fashioning of the writ system. 2. Second in importance is the Roman and canon law which came to England in the twelfth century. 3. Thirdly, there is the customary law which survived the Conquest and continued to be applied in the local courts. These latter two sources of law, as we have seen, formed the substance of the private law of France and Germany. What above all explains why the common law as it developed in England represents a different system from the modern civil law is the relatively slight effect left on the content of English law by these sources. The history of English law has been marked not by the reception of a foreign system and its fusion with native institutions, but instead by the growth of a body of rules newly fashioned by the king's justices and developed by their successors in which neither Roman law nor the customary law was a decisive or even a considerable influence. For a century and a half after the Conquest it was by no means evident that England was destined to develop a quite distinct legal system. The effects of the revival of Roman law studies in Bologna at the end of the eleventh century were quickly felt in England. The Glossator Vacarius taught Roman law at Oxford in the first half of the twelfth century, and issued a summa for the instruction of his pupils in 1149. The first two treatises on English law show clear marks of Roman and canonical influence. 1. Glanvill's book, which records the law of the time of Henry II, is partly based on the preface and introductory chapters of Justinian's Institutes, and certain Roman institutions are referred to or contrasted with the English rules. More importantly, "the book shows that Roman law has supplied a method of reasoning upon matters legal, and a power to create a technical language and technical forms, which will enable precise yet general rules to be evolved front a mass of vague customs and particular cases".9 2. Bracton's treatise also was clearly influenced by Roman law, which came to him through the Glossator Azo. The scope of his book was the same as that of the French works of customary law which were being published at the same period, namely about the middle of the thirteenth century; as Holdsworth remarks: "Bracton and Beaumanoir could have read and appreciated one another's books." Just as the French writers filled out the customary law with importations from the Roman law, so Bracton supplemented the meagre and inadequate rules of the common law upon such matters as the law of personal property and the law of contract by borrowings from Rome. At the same time we see in Bracton's work that the common law has greatly developed. New writs and forms of action have been devised, and the common law has gone far towards obliterating local customs.

Holdsworth:

Some Makers of English Law, p. 15.

9 The two centuries following the death of Bracton saw a sharp decline in the influence of Roman law in England. One factor was the ban imposed in 1167 on English students studying at the University of Paris.10 Although it continued to be studied at the Universities of Oxford and Cambridge, it had little effect on the common law itself. The common law exhibited two characteristics in this period. In the first place, it tended to become more fixed and rigid in substance; and secondly, the procedural law became more complex and technical. Such legal writings as are to be found in this period consist almost exclusively in commentaries upon the writs, and the legal education imparted in the Inns of Court concentrated on giving to the students an accurate knowledge of the procedural law in whose interstices the substantive law was still firmly embedded. Such Roman law as was introduced came not through the courts of common law, but through principles of equity developed by the Court of Chancery which owed its origin to the increasing rigidity displayed by the common law, and through the ecclesiastical and admiralty courts. Ecclesiastical courts dealt with matters of succession to personal property and family law.11 At the same time, the development of the forms of action around which the law of contract and tort later crystallised meant that the provinces of the law which on the Continent succumbed most readily to the Roman jurisprudence were secured to the common law. Meanwhile, Edward I (reigned 1272 1307) was a strong king, but he greatly enhanced the status of the newly evolved Parliament12 by summoning it regularly, settling its composition, and using it to promulgate laws. He conquered the remaining parts Wales in 1282. The promulgation of the Statute of Rhuddlan (Wales) 1284 provided for government of Wales, thus beginning the spread of the common law to other territories and jurisdictions but many Welsh laws and customs survived in much of Wales, particularly Welsh divided inheritance laws remain until 1536. The use of Parliament regularly to pass laws, by developing this indigenous source of laws, erected another obstacle to the adoption of Roman law as happened in most of Europe.13 In 1290 Edward I secured the passage of the Statute Quia Emptores. By prohibiting subinfeudation, this spelt the ultimate death knell of the feudal system, as the feudal ladder/pyramid could henceforth now only contract. By the time of Henry VIII, the early 16th century, almost all freeholders were holding their land directly of the king as tenants in chief. This had the effect of increasing the scope and importance of the common law as administered by the common law courts as the local manorial courts lost importance as the feudal system declined. Parliament divided into Lords and Commons in 1332 and gained influence through the need for Edward III (reigned 1327-1377) to raise money for the early part of the
Consequently, this is traditionally taken as the foundation date of the University of Oxford, although teaching had been taking place in Oxford before this. 11 This is why these matters and admiralty law were grouped together in the Probate, Divorce and Admiralty division of the English High Court when it was established as a result of the judicature reforms which fused the administration of law and equity in 1873-75 12 The origin of the English Parliament is gnereraly taken to be that summoned by Simon de Montfort in 1265, but it had been predated by councils of barons, and gatherings of tenants in chief. 13 It is significant that the influence of Roman law was less in countries such as Sweden, Scotland and Ireland, which had functioning parliaments continuously from medieval times.
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10 100 years war against France which began in 1337. This long war led to an upsurge of English nationalism.14 The Plantagnet Kings become English rather than Norman/French, and attempts to assert were made to assert national sovereignty by limiting the power of the Pope, then living under the influence of the French Kings at Avignon,15 in England. For example, in 1353 the first Statute of Praemunire was passed to counter the power of the Pope to appoint foreigners to ecclesiastical offices in England. The upsurge of national feeling fuelled support for the national common law system as opposed to acceptance of the Roman law based systems spreading across most of Europe. The 15th century saw a steady development of the common law under such great lawyers as Fortescue C.J.16 and its co-existence with equity but it was left to Henry VIII, to bring about the final triumph of the common law over foreign influence.17 He also completed its extension to Wales by the Act of Union of England and Wales 1536 (which allocated Monmouthshire to England) and further legislation securing Welsh representation in the House of Commons in 1543.

The Tudor period: 1485-1603 The accession of Henry VII marked the beginning of a concerted attempt to enforce the rule of law. This was a reaction to the anarchy of much of the previous 30 years dominated by the Wars of the Roses. This had left in its wake a parlous situation in relation to law and order, with all manner of devices employed by villains to escape justices such as intimidation of jurors.18 An attack was made on the abuse of the immunity of the clergy from answering for criminal acts int the ordinary courts, which is discussed below in connection with ecclesiastical immunities in general and the reforms of Henry VIII. The sixteenth century was decisive in the history of the common law. Early in that century the common law was in grave danger. Many and influential voices were raised against it, and there were calls for a wholesale reception of Roman law such as was occurring at the same time in the Empire. Four factors saved it. 1. The character of the Tudor sovereigns, who preferred to refashion rather than to supersede the mediaeval institutions of the country, and to adapt them to the changed conditions of the age rather than to root them out altogether. The principles of the common law were at the same time the principles of the constitution, and to set them aside completely would have constituted a revolution rather than a resettlement.
One manifestation of this was that the saintly Edward the Confessor was discarded as patron saint in favour possibly mythical St.George, the archetypical knight in shining armour, travelling the world in defence of virtue. 15 In fact this had led to two rival lines of popes operating through much of the 14th century. 16 The ability of the courts in Taltarums Case in 1472 to effectively render the provisions of the Statute de Donis Conditionalibus 1279 avoidable, is a testament to the independence of the judiciary in practice at this time. 17 Henry VIII doubled the size of the Statute book in the latter half of his reign from 1529-1547 (he had acceded in 1509). Legislation included that changing the succession to the Throne (3 times), and forgiving the Kings debts in 1529 and 1544. 18 See Trevelyan: History of England (Longmans 1926) 273-274.
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11 2. New courts, in particular the Court of Chancery and the Court of Star Chamber, supplied its deficiencies. As Maitland observed: "Were we to say that equity saved the common law, and that the Court of Star Chamber saved the constitution, even in this paradox there would be some truth."19 3. The continuity of the common law was ensured by Coke's restatement and modernisation of its principles at the beginning of the seventeenth century. 4. Finally, there was the important role played in the preservation and propagation of the common law by the independent legal profession centred upon the Inns of Court, and by what Maitland has termed "the toughness of a taught tradition". The power of the Pope was eliminated by the implementation of the Reformation legislatively.20 Notable aspects were: Restriction of Benefit of Clergy by an Act of 153221 Act of Appeals 153322 Act of Supremacy 153423 Acts providing for the Dissolution of Monasteries in 1536 & 1539

There was a brief reversion to catholicism under Mary I then consolidation of the independent protestant establishment under Elizabeth I . Her death in 1603 brought about the personal union with Scotland under James I. This brought into existence a new source of common law influence as far as Scotland was concerned. There was also increasing conflict between the Crown and Parliament. The spilled over into the relationship between the common law and equity and their principal protagonists, Sir Edward Coke CJ, and the Lord Chancellor, Sir Francis Bacon. Sir Edward Coke CJ. The dispute over which of law or equity was to prevail had arisen because Coke CJ had challenged the supremacy of equity by ordering the release of persons imprisoned for contempt of decrees of the Court of Chancery. Eventually, the only possible solution was seen to be a ruling from James I. In the Earl of Oxfords case he, predictably, came down on the side of equity, given that the common lawyers were inclined to be strong supporters of Parliamentary attempts to limit the royal prerogative. An example was the dispute over grants of monopolies by the Crown. The common law was intrinsically inclined against provisions in restraint of trade.24 Also grants of monopolies were opposed as an extraparliamentary source of revenue.

19 20

Collected Papers, Vol. 2, p. 496.

The so-called Reformation Parliament was summoned in 1529 and sat after numerous prorogations, which were very unusual in those days, until 1536. 21 This greatly restricted the privileged status of clerks in holy orders from the criminal law. Attempts to achieve end had occurred in the time of Henry VII, and earlier in the reign of Henry VIII 22 Removing rights of appeal to Rome in ecclesiastical matters. 23 Declaring the King the supreme head on earth of the Church of England. 24 For example, free alienation of land was supported by permitting the barring of entailed interests by the processes of fine or recovery contrary to the intention of the Statute de Donis Conditionalibus 1279.

12 Eventually, Sir Edward Coke CJ was dismissed by James I. This heralded an era of judicial instability ended by the insertion of provisions designed to secure judicial independence in the constitutional settlement following the glorious revolution of 1688, and their subsequent confirmation by the Act of Settlement 1701. Paradoxically, Sir Francis Bacon also eventually lost royal favour and resigned. Consequently, the 1688 Glorious Revolution was, among other things, a triumph of the common law. A few years later, common lawyers sought unsuccessfully to press their advantage further by introducing a parliamentary bill to remove the supremacy of equity. However, equity had by this time come to be seen by majority parliamentary opinion as complementary rather than antipathetic to the common law. The 1688 constitutional settlement heralded 300+ years of constitutionalism, and its regime was extended to Scotland by the Act of Union with Scotland 1707. The common law faced no significant non-military challenges.25 It was being widely spread overseas, largely by colonisation and settlement. The loss of the American colonies in 1775-1783 merely established another independent common law nation, which was ultimately to come to Britains rescue in several of the wars of the 20th century. The Act of Union with Ireland 1800, extended the British constitutional system to Ireland.26 The Irish Free State elected to retain the common law when it was formed in 1922, and subsequently its courts have taken a major role in developing the common law. The English common law system, although not the oldest legal system in existence, it is the oldest national law in existence, which was common to a whole kingdom. It is also comparable to the oldest, the civil law system, in the extent of its spread throughout the world, and in its remarkable influence, having been adopted by a wide range of countries and cultures, even in their post-colonial era. As with the civil law system, the English legal system has been spawned from a particular sequence of historical events, a set of distinctive legal sources, ideologies, doctrines, institutions, and a distinctive mode of legal thought. These, collectively, constitute the English common law tradition, which was successfully 'transplanted' from England to many countries throughout the world that are culturally, as well as geographically and linguistically, different from England and English culture. Those traditions, in places, such as Australia, South East Asia, India and Hong Kong, were formalised and made part of the predominant legal system of those jurisdictions. Remarkably, this uniquely English set of sources, inistititions and laws coexisted with the indigenous culture,
This issue had come to a head in 1472, when the common law courts declared it impossible to create and unbarrable entail. 25 Britain was threatened with invasion and defeat by revolutionary France and Napoleon in 1797 and 1805, and by Nazi Germany in 1940-1941. 26 Triggered by the 1798 rebellion. Pitts plan to mollify the catholic element by including catholic emancipation (allowing Catholics to vote for the United Kingdom Parliament, where they would not be a majority, unlike the situation in the Irish Parliament) was torpedoed by George IIIs refusal to give Royal Assent on the basis that it violated his coronation oath to support the Church of Ireland. In consequence, Pitt did the honourable thing and resigned, although recalled to office rapidly when crisis loomed a few years later after the collapse of the Peace of Amiens (Napoleon declared war again on 18 May 1803). However, catholic emancipation had to wait a generation until the Duke of Wellington forced it on George IV in 1829. The Act of Union was passed by the Irish Parliament on 28 March 1800, reputedly carried through by bribery on a scale unprecedented even by the standards of the 18th century.

13 religions and customs of those places, and a dualist system often emerged. Indeed, despite respecting and preserving local culture, the administration of justice Reception of English law was the result of British colonisation, and the dominance of the British empire during vital periods in However, several former colonies, well into their post-colonial era, and after their 'nationalist' stage of development, continue to use the common law approach and legal philosophy in their legal system. Early events which shaped English legal history were the early centralisation of courts, mainly brought about by Henry I, wherein the royal (the common law courts) became the main source of the law common to the whole country, the writ system which ensured a particular style of development geared to existing writs, which were later supplemented by the creation of the Courts of Chancery, which developed a separate body of law (known as 'equity'), both of which gave rise to a remedy orientated, pragmatic approach which had no need for scholarly input or advice. Therefore, English law developed through judicial decisions (or 'case law') and equity could, up to the late 19th century, only be administered by the Courts of Chancery. Equity and the common law were eventually 'fused' by the Supreme Court of Judicature Acts of 1873-75 in their jurisdictional application, but continue to exist as separate bodies of law, which may now be utilised by one and the same court. English law never 'received' Roman law in the way that it was received in civil law countries. The rigidity of the common law procedures, the need to conform to the framework that had been created, and the centralised courts, all helped to mould a diversity of local customs and primitive Anglo-Saxon practices into a law that was followed by the whole country, which thus became a common, unified law. It has been said that the common law 'dates from time immemorial', but it really dates from about the middle to the late 12th century when a common law was identifiable and could be said to be in place. Furthermore, at the time of the 12th and 13th century, when there was a frisson of Roman law 'intellectualism' running through continental Europe, consisting of learned treatises on the Corpus Juris, RomanoCanonical treatises on procedure, customary law and royal legislation, all of which had undergone a massive absorption of Roman law, English law had already experienced its era of modernisation'. The English common law tradition and the common law courts were already established and were, by that time, impervious to any reception of Roman law or, indeed, any foreign law. English law also created prerogative writs (certiorari, mandamus and prohibition) which enabled administrative decisions of State organs and officials to be challenged, which, therefore, rendered unnecessary any separate administrative courts such as those that developed in civil law countries. Examples of common law jurisdictions are Australia, the United States, Singapore, Malaysia, New Zealand, large parts of Africa, India, Pakistan, South East Asia and North America. Despite acquiring independence, several Commonwealth nations have maintained links with the United Kingdom and, although they have adopted written Constitutions, their judges have continued to interpret these in accordance with typical English legal methods, doctrines and legal conventions.

14

RECENT CHALLENGES TO THE COMMON LAW

Since the time of Coke the common law has never been in serious danger in England until the present time in the face of increasing domination of the English legal system by international influences. This has come about primarily as a result of the membership of the United Kingdom, since 1 January 1973, of the European Union. Roman law was of some assistance to Lord Mansfield in the eighteenth century in the development of English commercial law, and judges have occasionally had recourse to it when an analogy was in point. To a large extent, also, English law has adopted Roman terminology. But whilst it has received particular doctrines from Rome, neither the corpus nor structure of English law is Roman. As Holdsworth has well said: "We have received Roman law; but we have received it in small homoeopathic doses, at different periods, and as and when required. It has acted as a tonic to our native legal system, and not as a drug or poison. When received it has never been continuously developed on Roman lines. It has been naturalized and assimilated; and with its assistance, our wholly independent system has, like the Roman law itself, been gradually and continuously built up, by the development of old and the creation of new rules to meet the needs of a changing civilisation and an expanding empire."27 Many would argue that the accelerating reception of European Union law since 1973 does not constitute a homeopathic dose. In the much quoted words of Lord Denning shortly after the United Kingdoms accession: the Treaty is like an incoming tide. It flows up the estuaries and up the rivers. It cannot be held back . we must no longer speak or think of English law as something on its own. We must speak and think of Community law, of Community rights and obligations and we must give effect to them.28 Undoubtedly, the greatest series of challenges to the common law since its inception came about through the enactment of the European Communities Act 1972, paving the way for the accession of the United Kingdom to the European Communities. However, it may have been the 1985 Single European Act which was the crucial step in placing the supremacy of European institutions beyond challenge, coupled with the move to regular qualified majority voting in the Council of Ministers.29 The powers and influence of European institutions were further enhanced by ratification of the
27 28

Quoted more extensively in De Cruz: Comparative Law in a Changing World, 2nd edition 1999, p.164. Over a decade later he bitterly criticised the effect of European Union law on English law. 29 Later the European Council. Earlier, by a self-denying ordinance dating from the Luxembourg accord of the early 1960s, resolving an impasse over agricultural policy between France and other members, a member state was never overruled of it stated that its vital interests were at stake. Instead the members agreed that discussion would continue until agreement was reached. There was a first use of qualified majority voting in 1982 to overrule the United Kingdom, but its use had become regular by 1990.

H.E.L., Vol. IV, p. 293.

15 1992 Maastricht Treaty, the 1998 Amsterdam Treaty and the 2001 Nice Treaty. Moves, beginning in 1988 to remove right of silence in criminal proceedings in various parts of the United Kingdom, may be seen as an example of a traditional common law approach being abandoned in favour of practices employed in civil law jurisdictions. There is no doubt that in the context of a Union of 15 countries, only 2 of which have common law traditions, the imposition of European Union wide rules and European Union requirements to harmonise laws or comply with directives over a long period of time is a serious threat to the maintenance of the common law traditions. On another front, the treaty establishing International Criminal Court was ratified in 2001.30 The ability of the common law to maintain itself is also being eroded internally in the United Kingdom. In 1997 referendums approved devolution in Wales and Scotland, which gives rise to separate legal developments. The Human Rights Act 1998 incorporated the provisions of the European Human Rights Convention into domestic law, thus overruling common law principles to the extent of any inconsistency. In 1999 the House of Lords was partly reformed.31 This implemented the governments policy of removing the voting rights of hereditary peers.32 However, a compromise allowed the hereditary peers to elect 90 of their number to sit and vote.33 This is relevant because common law jurisdictions have generally been bicameral, allowing the fight to retain common law principles in the face of adverse legislation to be carried on in two legislative chambers. In Ireland also, the common law is under threat from the European Union. Although Article 29.6 of the Irish Constitution places Ireland firmly in the dualist category by stipulating that no international agreements shall be part of the domestic law of the State save as may be determined by the Oireachtas, this has been overtaken in respect of European Union law by its amendment on accession. Comparison with other countries Compared to others the English feudal system conferred comparatively few privileges on the Nobility. Apart from the right of the greater magnates to sit in the House of Lords, and earlier in the Witanagemote, their status derived entirely from their landholdings. There were none of the special privileges from taxation enjoyed, for example, by the French aristocracy right up to the eve of the revolution which broke out in 1789. English feudalism, while the most perfect and complete example in Europe in the period immediately after the Norman conquest, paradoxically was the first to wither and die. In other civilised parts of the world such as Asia the social system whether based on feudalism or otherwise tended to be hierarachical and dominated by the substantial privileges according to classes or castes. India was dominated by the caste system, and in China, Confucianism was based on differences in status and when it did give way it was to similar sorts of feudalism.

30 31

International Criminal Court Act 2001. House of Lords Act 1999. 32 In March 2003 there were 661. 33 House of Lords Act 1999, s.2

16 That the English Parliament itself did not succumb to the pressures to absolutism at the end of the Middle Ages is the result of a number of special factors. 1. Parliamentary institutions had become stronger in England than elsewhere. It is likely that bicameralism of the legislature played a fundamental role in this. The division into Lords and Commons, by concentrating those sympathetic to authoritarian rule into the upper house was probably crucial in enabling the Commons on behalf of parliament as a whole, to effectively challenge royal power in the 17th century.34 2. Geographic isolation meant that authoritarianism could not be effectively imposed from outside.35 3. The peculiar character and wide education of Henry VIII, who was the English Monarch best placed to follow the authoritarian road, meant that despite his extreme measures he chose to follow an entirely constitutional path, obtaining parliamentary sanction for all his measures. During his reign Parliament at his behest was called upon inter alia to: (a) formalise the break with Rome; (b) declare the King Supreme Head of the Church of England;36 (c) drastically reform property law;37 and change the succession to the Crown three times, finally giving him power to determine the succession to the Crown by his will; and change the succession to the Crown three times.38 Although Parliament was during his reign largely subservient to Henry VIII,39 its passage of legislation making such fundamental constitutional changes was bound to increase in the longer term the standing and stature of Parliament to huge degree. Furthermore, the very extravagance of Henry VIII brought about an increase in parliamentary influence to the consequent need to summon it more regularly to vote taxes, or raise money for the King by other legislative means. These products of the common law system were fundamental to the development of national sovereignty.

THE RISE OF NATIONAL SOVEREIGNTY

The Peace of Westphalia of 1648 is generally seen as the birthplace of the modern notion of national sovereignty among the European nation states and the beginning of international law which emerged in Europe after the end of the Middle Ages, after
In 1642, when Charles I raised his standard at Nottingham to presage the start of the Civil War he was joined by approximately one third of the Commons and two thirds of the Lords. 35 For example, the failure of the Spanish Armada in 1588, which had been designed to return England to the catholic fold which, incidentally, would have meant the demise of parliamentary independence. See also the explanations given for the development of democracy in some countries rather than others by James Q Wilson in Democracy for All? Commentary, 109(3) (March 2000) http://www.Commentarymagazine.com. 36 Act of Supremacy 1534. 37 See Statute of Uses 1535, Wills Act 1540, and legislation paving the way for dissolution of the monasteries, which greatly reduced Church landholdings for as much as one third of the Land in England to about a tenth. 38 The final part of his will was ignored in 1603 when James I acceded in spite of Henry VIIIs stipulation that his line be exclude in favour of the junior Suffolk Line, see Taswell-Langmeads Constitutional History, 11th edition (1960) at 330. 39 However, there was reluctance to pass some legislation, notably the Statute of Uses in 1535.
34

17 initial moves out the universal medieval European system dominated by the Papacy and secular empires by Sweden, Denmark, England and Switzerland beginning in the 1520's. This system spread throughout the globe but came under increasing pressure as the 20th century progressed through the development of international institutions such as the United Nations and increasing restrictions on the freedom of nation states by the obligations imposed by international law, treaties and international conventions. This conflict and its ramifications is examined against the background of the history of the development of national sovereignty from its 16th and 17th century origins asks where national sovereignty is currently heading against the backdrop of acute concern of crucial aspects such as immigration, the status of refugees and national and global security issues. There is also focus upon the impact of these developments upon the role of the military in protecting and preserving democracy and constitutionalism.

THE RISE OF NATIONAL SOVEREIGNTY AND DEVELOPMENT OF INTERNATIONAL LAW Importance of the Peace of Westphalia The origins of national sovereignty and the major trigger for the widespread development of International law is usually ascribed to the Peace and Treaty of Westphalia in 1648 which ended the bitter ideological40 and extremely costly41 thirty years war. This gave rise to the so-called Westphalian doctrine of non-interference by sovereign states in each others internal affairs. Accordingly, the Holy Roman Emperor no longer had any possible legal justification for intervention in the internal affairs of the many States comprising his Empire. The principle survives today in a different form as Article 2(7) of the United Nations Charter.42 Another important feature was that while some states would be militarily more powerful they were all regarded as having equal rights to sovereignty as members of an international community of states. This principle applies in the United Nations General Assembly where each State has an equal voice, but not in the Security Council where the five permanent members do not have to seek periodic election like other States and have a veto power. The Westphalian doctrine was adopted in reaction to the immense catastrophe of the thirty years war, which brought about a realisation that something fundamental must change to prevent a repeat. No other war prior to that time had wreaked such havoc, and only the Black Death of the 14th century had caused greater destruction of life in Europe as a whole, although not in Germany. The Westphalian doctrine involved a recognition that in order to avoid perpetual conflict as a result of religious differences in the aftermath of the16th century Protestant Reformation, the pre-reformation
In religious terms, as it essentially pitched Catholics against Protestants. It is believed that between one third and two fifths of the population of Germany perished as a result of the war. 42 Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter
41 40

18 universal world of medieval Christendom must give way to one in which States were allowed to differ on fundamental aspects of their internal organisation. The particular example of this issue that it resolved was the recognition at least by most of Catholic Europe, notably the Holy Roman Emperor, that attempts to reimpose Catholicism by force throughout Europe could not be further pursued so that Protestantism was there to stay for the foreseeable future. Spain remained unreconciled and continued its war with France until 1659. Spain was supported by Pope Innocent X who denounced the peace. The only major {European) Christian states not party to the 1648 Westphalian Treaties were England and Scotland, then engaged in finding their own internal religious and constitutional modus vivendi,43 Poland and Russia. However, neither of these countries had been engaged in the thirty years war, nor had they interfered in internal religious affairs outside their own dominions. The Ottoman Empire was also uninvolved. The Peace of Westphalia is a term generally used to refer to the series of European settlements of 1648, which brought to an end the Eighty Years War between Spain and the Dutch and the German phase of the Thirty Years' War. The peace was negotiated, from 1644, in the Westphalian towns of Mnster and Osnabrck. The Spanish-Dutch treaty was signed on Jan. 30, 1648. The main treaty of Oct. 24, 1648, involved the Holy Roman emperor Ferdinand III, the other German princes, France, and Sweden. England, Poland, Russia and Turkey, not being directly involved, were the only European powers that were not represented at the two assemblies. The Peace recognised the independence and hence the national sovereignty of Switzerland from Austria, for which it had first fought in 1291, and the Netherlands, apart from the southern provinces, from Spain. However, it went beyond merely making peace among the warring German states of the Holy Roman Empire. They were all recognised as independent sovereign states. This amounted to a de facto dismantling of the Holy Roman Empire, which afterwards was but a cipher of its former self.44 Thus was born not just international law but the concept of national sovereignty on a broad European scale An example of the lack of any such clear concept before this time is the refusal of Pope Innocent X45 to recognise the independence of Portugal, then at war with Spain. Others are declarations in legislation of the England of the 1530s that England was an Empire,46 as part of attempts to withdraw from the common system of Papal authority that had hitherto extended throughout Christendom. There being no clearly accepted previous concept of an independent sovereign nation state so that only empires were seen as exempt from external authority. The Transition from the Medieval Period to the Modern Era Historians generally agree that there was a fundamental shift at the end of the Middle Ages from the age of empires to the modern period characterised by nation states.
43

The English Civil War and its aftermath lasted in various forms until the enduring compromises of the Restoration of 1660. 44 Thus justifying Voltaires jibe in the following century that; the Holy Roman Empire was neither Holy, nor Roman, nor an Empire. 45 Reigned 1644-1655. 46 See Act of Appeals 1533 (24 Hen VIII, c.12), discussed in Taswell-Langmeads English Constitutional History,11th edition 1960 by T. Plucknett, at 276.

19 This process began in Europe with empires surviving elsewhere until overthrown, as in South and Central America or India. Imperial arrangements survived in China formally until 1912, although it may be argued that the main characteristics of an imperial system still exist under communism and in Russia, under the cloak of communism until its fall 1989-91. Medieval Europe was to some extent under universal papal jurisdiction as Henry VIII discovered in the late 1520s and early 1530s when he sought to end his marriage to Catherine of Aragon in the cause of not becoming the first English Monarch since Henry I in 113547 to die on the throne without having furnished the Kingdom with a male heir.48 Significant parts of Europe were comprised in the Holy Roman Empire, founded by Charlemagne at the start of the 9th Century and seen by many as the successor of the Roman Empire in the West. Byzantium, the Eastern Roman Empire continued formally in existence until the fall of Constantinople in 1453. To the east Europe was bounded by the Russian and Ottoman empires. Accordingly, only the minor interlude of the dark ages separated medieval imperialism from that of the ancient world, dominated in turn by the Egyptian, Hittite, Assyrian, Babylonian, Mede, Persian, Greek and Roman Empires, which had emerged out the previous nomadic or hunter-gatherer existence which continued into the modern era in more remote parts of the globe such as North America and Australia. Although the British and other European colonial empires rose in the modern era there were not empires in the traditional sense in that there was a clear differentiation between the metropolitan territory and colonies. Colonies were therefore always in a position to be given independence, as happened in the late 20th century, or bartered as spoils of war. Settlements were often in places with no established local administration, might only be trading posts, or in protectorates established for diplomatic purposes. Importance of the Reformation in this Process The trigger for the establishment of national sovereignty appears to have been the protestant reformation begun by Martin Luther in Wittenberg in 1517.49 However, the evolution of the concept of the divine right of kings by scholars of the Italian Renaissance in the 15th century, as an aid to medieval princes in challenging papal authority is also relevant. The medieval French Kings adopted a different approach by dominating the papacy itself through their relocation to Avignon, although this led to the disaster of two rival lines of popes in the 14th century. Attempts to challenge the universality of the medieval church under papal authority were ruthlessly suppressed as heresy in the medieval period. The existence in England of the Lollards, followers of the unorthodox views of former Oxford theologian, John Wycliffe, were the cause of the passage in 1401 of the Statute de Haeretico Comburendo prescribing the burning of unrepentant proponents of doctrines deemed heretical. The Bohemians, inspired by lollardry, were eventually suppressed in the 15th century.

47 48

Which circumstance led to civil war between Stephen and Henry Is daughter Matilda In the form of a son, or at least a younger brother as in the case of Richard I in 1199, which, incidentally led to the accession of the infamous King John. 49 The invention of the printing press by Gutenberg in 1477, facilitated the spread of any unorthodox message and frustrated authoritarian attempts at suppression.

20 Sweden breaks away Sweden was the first to break with the medieval system of subservience to the Pope and establish the modern form of national sovereignty. Sweden has enjoyed independence since Gustavas Vasa re-established the independent Swedish Monarchy and at the same time adopted the Lutheran religious reformation in 1521-3. He had escaped the massacre of the nobles by the tyrannical King Christian II50 in Stockholm in 1520.51 This ended with the overthrow in Sweden of the despotic Danish King Christian II by Gustavas Vasa, the son of one of the victims of the massacre, when he returned from exile in 1521 at the head of a revolt. This was in reaction to the Stockholm Bloodbath. He was finally successful with the surrender at Kalmar of the last Danish garrison in 1523. He was proclaimed King by the Diet of Strangnas in June 1523.52 The fact that the murder of 80 nobles under the Kings orders had been with the consent of the Catholic Bishop, doomed the catholic cause in Sweden and, within a generation in the whole of Scandinavia,53 in favour of the new Lutheran doctrines. Switzerland Switzerland, with its loose confederation of Cantons, had always enjoyed a broad measure of independence since casting off Austrian rule in the early 14th century. The events associated with the reformation reinforced this, Geneva becoming a centre of the Calvinist version of Protestantism and attracted large numbers of French and Italian refugees. Henry VIIIs break with Rome54 England broke away from the universal world of medieval world of universal Christendom through the legislative actions of the Reformation Parliament summoned on 4 November 1529, and finally dissolved after annual prorogations55 on 14 April 1536. These legislative actions were directed by Henry VIII and his chief adviser in these matters, Thomas Cromwell. Attempts to limit papal influence and ecclesiastical power in England had a long history dating back to Henry IIs celebrated quarrel with Thomas ABecket, which he lost as a result of the latters martyrdom.56 In the 13th and 14th centuries they found expression in the Statutes of Praemunire of 1353 and 1364, attempting to limit papal jurisdiction, and in the Statutes of Mortmain of 1279 and 1391, attempting to prevent the evasion of feudal dues by transfers of property to ecclesiastical bodies. The Reformation Parliament began by chipping away at ecclesiastical privileges such as excessive probate and mortuary fees, but once the situation regarding the Kings divorce became intractable
He was the last Danish king to rule Sweden as a result of the Union of Kalmar agreed in 1389 and in effect from 1397-1523. 51 Sweden, always little more than a lawless fief of Denmark under the Union of Kalmar. Had broken away in 1502, but Christian II had ruthlessly reasserted Danish rule in 1520. 52 He reigned until his death in 1560. 53 Denmark, still ruling Norway, adopted Lutheranism in 1536, Finland was ruled by Sweden and Iceland had also become Lutheran by 1550. 54 A fascinating question is to what extent Henry took note of events in Sweden. As a well read scholar and international correspondent he would undoubtedly have been aware of them. Furthermore, although his dissolution of the monasteries attracts so much historical attention, widespread secularisation of church lands had taken placed in Germany early in the 1520s. 55 Now the standard practice, but unusual in those days. 56 In the Constitutions of Clarendon 1164, the King had claimed limits on the immunity from the ordinary law of clerks on holy orders, rights to revenues of vacant sees and the ultimate authority in legal matters which were lost in the aftermath of Beckets martyrdom and King Johns misrule.
50

21 passed in 1533 the Act of Appeals preventing any appeals from the English Ecclesiastical Courts to Rome, and finally, in 1534, delivered the coup de grace of the Act of Supremacy, declaring the King to be the only supreme head on earth of the Church of England. The totality was an unprecedented assertion of national sovereignty.57 Although the major break was made at the occasion of the Protestant Reformation in the 16th Century, English Kings had made previous attempts to limit papal jurisdiction. The major one was the passage of the Statutes of Praemunire, dating from 1351.58 The object was to reduce the influence of the Pope in England.59 Earlier Kings, for example, Edward I, had also sought indirectly to limit foreign ecclesiastical influence by limiting the accumulation of ecclesiastical property through the Law of Mortmain, which dated from the late 13th Century. In this matter preservation of the Kings feudal dues, which would not be payable to the same extent on church land, was also a major consideration.60 However, the primary motivation for the enactment of the Statutes of Praemunire was the prolonged struggle between the English and French monarchs of the 100 years war, starting in 1337, in which the Pope was a key player, and the papal courts were of great importance. In order to ensure that these processes would operate to French advantage, the French King, Philip the Fair, kidnapped Pope Boniface VIII, and forced him to march from town to town until he died of a heart attack. He then persuaded the cardinals to choose a French bishop as the new Pope and relocated the papacy in Avignon. Why the assertion of National Sovereignty succeeded Of course it was one thing to attempt break away from the universal world of Christendom of the time and quite another to succeed. Various dissident groups had been ruthlessly suppressed by the authorities at various times in the Middle Ages; one of the last being the Bohemians in the early 15th century. The crucial difference after the Protestant Reformation broke out in 1517 was that it gained the backing of rulers who could resist immediate suppression. This was through their either being sufficiently powerful in their own right or with allies as in the case of German princes and the Dutch or enjoying sufficient geographic advantages of remoteness or natural

Internally, it was also an unprecedented assertion of the sovereignty of the King in Parliament and a major step in the development in English constitutional law of the doctrine of parliamentary sovereignty. 58 Under Edward III. Another Statute was passed in 1593 under Richard II. Much earlier Henry IIs attempts to clip the wings of the church had ended in disaster when the murder of Thomas ABecket by four of his knights led to a major reaction which forced the King to do penance. Reaction to King Johns excesses also resulting the privileges of the Church being entrenched in Magna Carta. ). There is a detailed history of the legal and constitutional relations between Church and State in England up to the Reformation in Taswell-Langmeads English Constitutional History,11th edition 1960 by T. Plucknett, Chapter 12, 256-288. 59 Blackstone defined the essence of the offence as introducing a foreign power into the land and creating imperium in imperio, by paying that obedience to alien process which constitutionally belonged to the King alone; 4 Blackstone Commentaries, 103. 60 The accumulation of church property during the late Middle Ages was huge, from approximately a fifth of all property at the Norman Conquest in 1066 to as much as a third by the time of Henry VIII. His dissolution of the monasteries and associated reforms probably reduced this to one tenth or less, this releasing more property into commerce; probably the major factor in Englands leading role in economic development from this time.

57

22 barriers to conquest as in the case of England, Sweden, Denmark and Switzerland.61 It is significant that Germany and the Netherlands, which did not enjoy such geographic advantages, suffered the brunt of the religious warfare between 1517 and 1648. Initial skirmishing was suspended by the Peace of Augsburg in 1555, which in a sense divided Germany between Catholic and Protestant States, but without the thoroughgoing reform of the system of international relations which occurred at Westphalia in 1648. The continued enmity demonstrated by the attitude of Pope Gregory and the massacres of Huguenots in France demonstrated that this peace was only temporary. There is a parallel in the late 20th century in the 1945-1989 cold war between the ideologically opposed West led by the United States and the Communist countries led by the Soviet Union. The significance of these events was twofold. Firstly, the scale of the challenge. This was not some isolated commune of heretics or itinerant eccentrics, like the Bohemians of propagators of Lollardry, but much of northern Europe renouncing papal authority. Secondly, their geographic isolation meant that they could not be brought to heel easily or at all.62 Development of International Law and first Recognition of Human Rights The Treaty of Westphalia is also notable for one of the first moves towards arecognition of human rights in international affairs. Enslavement of enemy soldiers, originally common, had declined in Europe during the Middle Ages, but ransoming was widely practiced and continued even as late as the 17th century. The development of the use of the mercenary soldier tended to create a slightly more tolerant climate for a prisoner, for the victor in one battle knew that he might be the vanquished in the next. In the 16th and early 17th centuries some European political and legal philosophers expressed their thoughts about the amelioration of the effects of capture upon prisoners.63 The idea was generally taking hold that in war no destruction of life or property beyond that necessary to decide the conflict was sanctioned. The Treaty of Westphalia, which released prisoners without ransom, is generally taken as marking the end of the era of widespread enslavement of prisoners of war. An echo of this was the declaration against the slave trade included in the settlement concluded at the Congress of Vienna at the conclusion of the Napoleonic wars at the insistence of the British statesman Viscount Castlereagh. Positive consequences of the Westphalian settlement In 1648, however, it was religious differences, which were principally on the minds of the authors of the settlement. Nevertheless, it did allow the peaceful development of different forms of government: notably democracy, at first in Britain and America in the 18th century and in most European countries in the 19th century. The Westphalian settlement was also very successful in preventing widespread destruction
For a more detailed discussion of the close relationship between geographic remoteness, adoption and maintenance of protestantism shortly after the Reformation and early development and long enjoyment of democracy see Democracy: its Survivability, a Chapter by the author in Beyond the Republic(Ed. C. Sampford & T. Round, Federation Press, ISBN 1 86287 377 1) 111-112. 62 For a detailed discussion of the importance of geographic isolation in the development of independence and democracy see Democracy: its Survivability, a Chapter by the author in Beyond the Republic(Ed. C. Sampford & T. Round, Federation Press, ISBN 1 86287 377 1) 111-112. 63 The most famous of these, Hugo Grotius, stated in his De jure belli ac pacis (1625; On the Law of War and Peace) that victors had the right to enslave their enemies, but he advocated exchange and ransom instead.
61

23 in Europe through war. From 1648 to 1914 European wars were generally of limited scope or duration involved comparatively small forces, did not involve ideology, and did not wreak widespread havoc on the civilian population. Wars were generally over disputed border provinces or succession to thrones or caused by commercial or colonial rivalries, rather than being a simple case of interference in another countries internal affairs. With the major exception of the activities of Revolutionary France and Napoleon64 from 1793-1815, countries did not seek to deny the national sovereignty of other states by attempting outright conquest and occupation or to impose their own religion, political system or ideology on others. A prime example is the War of 1812 between the United Kingdom and the United States. Despite its occurrence at the height of the Napoleonic Wars, and the United States being a group of former British Colonies which had successfully asserted its independence by military force including international help from the French among others, the United Kingdom made no attempt to reconquer and reoccupy the United States. The Napoleonic Interlude In 1793, the reign of terror and mass execution of the aristocracy following the French Revolution, proved too much for the reactionary European powers to stand aside.65 Indeed the declarations of war on France could be seen as the first international intervention on the side of human rights, a desire to crush the revolution, in case the contagion would spread to their countries. The French revolution and later Napoleon sought to impose its ideology on other parts of Europe,66so attacks on France could be seen as pre-emptive acts in self defence. Indeed the French Revolutionary Governments, culminating in Napoleon,67 the first modern dictator, showed no respect for the national sovereignty of other States and sought to recreate a world of empires, for which his was the greatest. The Congress of Vienna, convened in 1814-1815 to draw up the European peace settlement at the conclusion of this period, found no reason to question the theory of national sovereignty that had originated in 1648, or its subsequent developments. Indeed it developed it further, with important principles being laid down regarding protocol, drawing up of treaties and diplomatic representation. However, the exiling of Napoleon, firstly to Elba, and after his subsequent adventure of 100 days culminating in his defeat at Waterloo, his imprisonment at St.Helena, were in those days unprecedented treatment for a defeated ruler. The cumulative effect of the sufferings that he had inflicted for the best part of twenty years on the peoples most of the European continent fuelled the demands of their rulers that he be banished and later imprisoned, treatment in the 20th century deemed appropriate for those categorised as war criminals.68
.

65

Many aristocrats in other countries had family links with members of the French aristocracy. In particular, the execution of Marie Antoinette, was bound to have major diplomatic repercussions, given that she was of the Austrian Royal House. Arguably these events made the issue an international one. 66 Napoleons orgy of conquest of European countries in 1805-1806, led to the establishment of an Empire the repeated European fixation with re-creating a Roman Empire was to the fore again. There being no room for any other empire, the Holy Roman Empire was finally abolished (one might say put out of its misery) in 1806. 67 Napoleon became First Consul 19 February 1800. 68 Significantly, he chose to surrender to the British after Waterloo, expecting the best terms form them. As Britain was the only major combatant which had not suffered invasion and occupation of significant parts of his territory feelings were not as extreme there.

24 Another first during the Napoleonic period, of great significance to international trade was the systematic use of economic sanctions as an instrument of policy designed to bring a country, the United Kingdom, to its knees. Napoleons Continental System closed the Europe over which he held sway to British Goods. Britain retaliated with the issue of the Orders in Council under which Continental Europe was blockaded. Assertion of the right to board and search neutral ships in pursuance of this policy eventually led to the War of 1812 between the United Kingdom and the United States.69 Apart from this, there were the usual border adjustments. For example, at the Congress of Vienna, Saarland was obtained by the Kingdoms of Prussia and Bavaria, and other smaller states of the German federation. Following the French Revolution, the local rulers had been expelled in 1793 and the entire left bank of the Rhine made part of France. Comparative Peace contributing to Economic and Political Development. Apart from this tumultuous interlude, the quarter millennium from 1648 to 1914 was marked by longer periods of peace than had hitherto been enjoyed since the Pax Romana. Such wars as were fought were of comparatively low intensity and short duration and were occasioned generally by minor territorial disputes, disputed royal successions or colonial and trading rivalries. Helped by the long peace, economic prosperity spread immensely during this period. For the first time in history famine disappeared on a permanent basis from a major part of the world in the Europe of the late 19th century.70 This was in marked contrast to the immediately preceding period from the start of the protestant reformation in 1517 to 1648 which was marked by repeated, frequent, intense and often bitter and ideologically driven conflict often resulting in great suffering on the part of the civilian population, as well as related internal disturbances.71 This period was also marked by progress. Whereas low intensity wars were accepted in the 18th century, after the Congress of Vienna in 1815 concerted diplomatic efforts were made to prevent or solve conflicts. Examples are the Berlin Conference of 1878 on the Eastern Question. Historians generally regard there as having been a fundamental change in history in the transition from the Middle Ages to the modern era around 1500. The Middle Ages and before, back to the Ancient World is seen as an age of empires, in contrast to the domination of the modern era by the concept of nation states. Inherent in this is the Westphalian concept of national sovereignty. The 1648 Westphalian

69

This curious war included several dramatic events, notably the sacking of Washington and the burning of the White House, the battle of Lake Champlain, and the main British losses occurringat the Battle of New Orleans, taking place after peace had been made but before the news had arrived, elevating General Andrew Jackson to hero status, which propelled him to a two term presidency half a generation later (1828-1836). It also laid the foundation of the long periods dominated by pax Britannica/Americana in international affairs through a realisation that peaceful relations were essential given the long indefensible border between the United States and Canada. Restrictions of naval forces in the Great Lakes of North America also followed. 70 Some richly endowed settler colonies such as those in North America and Australasia had achieved this outcome earlier. 71 For example, the St.Bartholomews Day Massacre in France on 24/25 August 1572.

25 Settlement reduced the Holy Roman Emperor to a largely ceremonial role,72 albeit one enjoying great prestige, except in relation to the hereditary territories of the Hapsburg Family. The age of European, as opposed to colonial, empires was over, except for occasional resurrections when tyrants such as Napoleon, Hitler and Stalin acquired control over other countries. Where and when such empires existed, concepts of national sovereignty were temporarily blurred. In the pre 1648 Europe, with its lack of clear definition of national sovereignty, but a rather a patchwork of rambling and competing empires still embracing much of feudalism, there was no clear distinction between internal and external affairs as there was no clear system of nation states. The territorial boundaries of these empires ebbed and flowed with their political and military fortunes. Consequently, interference in internal affairs of territories was easy to justify on the basis of some alleged feudal right, or after 1517, in the name of maintaining the true universal Christian religion against allegedly heretical reformers. Furthermore, prior to the reformation the Pope regarded himself as in some senses the head of a united Christendom. The Vatican was a form of medieval United Nations in the European Context.73 Legally, the Vatican held unquestioned sway in certain areas such as marriage and divorce, being the final court of appeal on such matters, and in England the church also controlled succession to property other than land. The Pope was also an influential political player. An example, again from England was the imposition of the six year long interdict during the reign of King John.74 King John eventually resolved the matter by resigning his crown to the Pope and having it regranted. Also, once he had escaped from the influence of the Barons who had constrained him to sign Magna Carta he appealed to the Pope, who promptly purported to release him from its terms. In 1571 Pope Gregory issued the infamous Bull Gloria in Regnans, absolving subjects from allegiance inter alia to Elizabeth I as an excommunicate sovereign, and indeed going further in declaring it their duty to rise up and overthrow such sovereigns, by violence if necessary. As explained above, limited number of European countries had succeeded in establishing the essentials of national sovereignty in the century of more prior to 1648, by breaking away from allegiance to the Pope. For example Sweden broke away by establishing Lutheranism as the state religion on the assumption of the throne by Gustavus Vasa75 on the deposition of the despotic King Christian II of Denmark76 in 1521-23. Papal jurisdiction in England was terminated By Henry VIII by his securing the passage in the early 1530s of the Act of Appeals and the Act of

72

Hence enabling Voltaires famous quip that in the 18th Century (in 1759 in Essai sur les Moeurs et lEsprit des Nations, lxx) the Holy Roman Empire was neither holy, nor Roman nor an Empire. It was certainly not an empire after 1648. 73 Perhaps a medieval version of the European Union is a more apt description! 74 1199-1216. 75 He had escaped the massacre of large numbers of leading nobles by King Christian II a few years before. The support of the Catholic bishop of Stockholm for this action was fatal to the catholic cause. For general information on the Swedish history of this period see http://www.utb.boras.se/uk/se/projekt/history/ns4.htm 76 Sweden and Denmark, who together included at this time within their jurisdiction the territory of present day Norway, had been ruled by a joint monarchy since the Union of Kalmar of 1389.

26 Supremacy.77 Similarly Denmark adopted Lutheranism in the mid 1530s and independent-minded Swiss Cities78 and Cantons went their own way. It seems that the development and long enjoyment of democracy has a close link with the attainment of, and particularly the early attainment of, national sovereignty. Otherwise it would be a remarkable co-incidence that England, Sweden and Switzerland79 are the only three of the only seven countries which enjoyed continuous democracy throughout the 20th century that existed prior to 1776 and were with Denmark80 the first four to establish national sovereignty as a nation state rather than as an empire. After 1648, the concept of national sovereignty spread beyond Europe as international relations developed with countries in other continents and as European and other countries gained independence either by war or rebellion81 or by peaceful legal process.82 The independence of the United States added it to the eurocentric world of nation states and other American States followed as they gained their independence. This process was greatly facilitated by the enunciation by President Monroe in 1823 of the Monroe Doctrine as the fundamental principle of United States foreign policy. This stated that the United States was not a European power and so would not take sides in European concepts, but that it would regard any further83 colonial activity by European powers in the Western Hemisphere as a threat to its security. This essentially placed the Americas off limits to further European colonialism and effectively guaranteed national sovereignty to the emerging newly independent former Spanish colonies of South and Central America. The Monroe Doctrine stood unchallenged until World War I.84 This meant that European colonialism was confined to the other continents.

It has been argued (By R.Evans at the 11th Conference of the Sir Samual Griffith Society) that English national sovereignty was established much earlier, in 1295 when Edward I summoned he first Parliament to raise taxes, and demonstrated by the Statutes of Praemunire 1351 and 1393 pased in the reigns of Edward III and Richard II respectively. Blackstone (in 4 Blackstone Commentaries, 103) defined the essence of the offence of praemunire as: introducing a foreign power into the land and creating imperium in imperio, by paying that obedience to alien process which constitutionally belonged to the King alone 78 Notably Geneva, which was the home of Calvinism. 79 Switzerland only lost its independence for the short period of 1798-1803 as a result of Napoleonsactivities, but an Act of Mediation was passed restoring Swiss Independence on 19 February 1803. 80 Denmark only failed to enjoy continuous democracy throughout the 20th century through its conquest by the Nazis in World War II. The same applies to Norway, which was part of Sweden and Denmark in earlier times, and to Finland, also part of Sweden in earlier times, from its independence from Russia in 1917. 81 The independence of the United States was recognised by Great Britain in 1783 by the Treaty of Versailles. The successful war of independence by the American Colonists led to the Spanish colonies in the New World following their example in the early part of the 19th century. 82 For example, the separation of Norway from Sweden in 1905. 83 It accepted existing colonies, for example from 1815 it enjoyed peaceful relations with the United Kingdom and Canada and supported the United Kingdom in the Falklands War in 1982. 84 It may be said to have been exploded by the German torpedo which sank the Lusitania in May 1915. Although it was a British ship, the fact that 128 United States citizens went down with it began the chain of events which over the next two years inexorably drew the United States into World War I.

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27 While colonial activity may have diverted European imperial ambitions and thus played a major role in bringing about relative peace in Europe for the quarter millennium after 1648, imperial ambitions were still nascent and exploded during the Napoleonic period and again under Hitler and Stalin in the 20th century. The desire to recreate the glories of the Roman Empire seems to be rooted deep in the continental European psyche.85 The European Union may be seen as the most recent example. Britain, on the other hand, in this as in so many other areas has, to some extent, remained aloof from European trends.86 The same to true to a greater or lesser degree of Switzerland and Scandinavia. British colonisation seems initially to have been largely motivated by a desire to find new trading opportunities rather than expansion of empire. It was originally largely left to commercial companies,87 or self-help initiatives by groups of individuals seeking greater religious freedom,88 although the grandeur associated with empire became more influential later. From its genesis in 1648 Westphalian settlement international law in governing relations between the European states developed to the point where it could not be ignored by the Founding Fathers in drafting the Constitution of the United States.89 The concept of maintaining diplomatic relations had become very well established; hence the several references to ambassadors in the Constitution of the United States.90 Considerable reference is also made in this Constitution to treaties.91 ASPECTS OF NATIONAL SOVEREIGNTY National sovereignty has both internal and external aspects. Internal Sovereignty Internally it involves the power to rule over the country. Initially, this was largely untrammelled and exercised by absolute monarchs but came to be limited by constitutionalism. For example, in the 17th century England went through a long struggle between King and Parliament, culminating in the establishment of constitutional monarchy as a result of the Glorious Revolution92of 1688. This led to the concept of parliamentary sovereignty. This meant that the internal sovereignty of England (and Wales93) was henceforth exercised by Parliament. However, the
85

Mussolini saw himself as a latter day Caesar, and a number of European countries have described themselves at times as empires and emulated Rome by titling the ruler Caesar. For example Russia, which saw its empire as the third Rome after the fall of the second, Constantinople, from which it had taken the Orthodox religion, ruled by a Czar, a term derived from Caesar. The title Kaiser used in the German Empire after unification in the 1860s, has a similar origin. 86 For example the contagion of revolution which swept most of continental Europe in 1848 and 1968 had no counterpart in the United Kingdom. 87 For example, the East India Company and the Hudson Bay Company. 88 Such as the voyage of the Pilgrim Fathers to Massachusetts on the Mayflower in 1620. 89 The Law of Nations is mentioned in Art I, s 8(10): Congress to have power to define and punish offences against the law of nations. 90 Ambassadors are mentioned in Art II, s 2(2): Presidents power to appoint ambassadors; and Art II, s 3: duty to receive them; Art III s 2(1): power of Supreme Court to try cases involving them . 91 United States Constitution, Art I, s 10(3): no state to make a compact or agreement with a foreign power; Art II, s 2(2): Presidents power to make treaties with the consent of two-thirds of the Senate. 92 So named because it involved no bloodshed. 93 Which had been incorporated with England for purposes of law and government by the Act of Union of 1536.

28 Monarch had a role in that he or she must assent to legislation as well as it being passed by both Houses to become law. However, these changes did not limit the internal sovereignty of England and later Great Britain94 and the United Kingdom95; merely redefined which persons and bodies were to exercise it. This was to remain the case until British sovereignty was limited by the European Communities Act 1972 to pave the way for accession to the which later was renamed the European Community and finally the European Union. This is an example of how country may limit its internal sovereignty by adopting a written constitution or entering indefinitely binding treaties which it has thereby constitutionally bound itself in such a way that it is not free simply to reverse the change. In the case of the United Kingdom this was a return to a situation somewhat akin to that of England in the medieval period, which was subject, as described above, to papal jurisdiction, and frequently in a state of tension over attempts to expand or limit this jurisdiction. Not all written constitutions limit internal sovereignty, or do so to a significant degree, as they permit amendment, although internal sovereignty will in effect, at least in some respects have been transferred to the bodies which have power to amend the constitution. Accordingly, the Swiss Constitution of 1848 by allowing amendment of any provision by a majority in a referendum, providing it involved a majority of Cantons, did not involve any limitation of internal sovereignty.96 However, if the amending process is restricted so that some provisions of the constitution are unamendable then the adoption of the constitution has limited internal sovereignty. In the United States and Australia the amending process is only limited in that States may not be deprived of their equal representation in the Senate nor have their boundaries changed without their consent. Theoretically, this does not totally block any amendment although, in practice, a State will be unlikely to agree to any reduction in its representation or territory. Similarly the American Bill of Rights, consisting of constitutional amendments passed in 1791, could be repealed, ultimate sovereignty in this respect lying with the legislatures of the States, of whom threequarters must concur for a constitutional amendment to be ratified. However, some more recent constitutions purport to debar certain changes. For example the post war German Constitution provides that no amendments may alter the free democratic order, which it establishes. Also, where Courts discover implied rights in a constitution, as in Australia by the High Court in the early 1990s in relation to political speech,97 it is unclear how an amendment might be drafted to change this. The Indian Supreme Court went further in the early 1970s by declaring some constitutional rights and freedoms so fundamental that they could not be removed by constitutional amendment. Given subsequent decisions regarding the supremacy of European Union law over domestic United Kingdom law, including an Act of Parliament passed subsequent to the European Communities Act 1972, it is uncertain how, if at all, the United Kingdom might repeal any such law without securing the agreement of the European Union.
94 95

Through the Union with Scotland in 1707. Through the Union with Ireland in 1800. 96 Quaere whether the new 1999 Constitution does so in its attempt to restrict changes contrary to international law. This issue is discussed below. 97 Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106.

29 Internal Sovereignty may also be affected by entering into a treaty if this cannot be unilaterally terminated and is unlimited in time.98 A prime example is entry into the European Union discussed above in relation to the United Kingdom. Difficult issues arise in relation to sovereignty if the State feels constrained not to escape through threat of sanctions.99 Internal Sovereignty is also increasingly threatened by the development of international law in outlawing certain state activity irrespective of the assent of the State concerned in this limitation of sovereignty. An example is concern over genocide or ill-treatment of ethnic minorities. Such concerns led to the intervention against Serbia in Kossovo in 1999, although the merits and legality of this action is currently the subject of heated debate. External Sovereignty External sovereignty consists of such matters as entering treaties, declaring war, making peace, using military force against another state. This has been restricted in the last 60 years in that international law has developed so as to outlaw aggressive war. Nazis were tried and convicted of this at Nuremberg, although this was and remains a matter of controversy.100 The United Nations Charter outlaws unilateral aggressive war though only permitting force, other than that authorised by the Security Council, to be used for self defence. This has generally been interpreted as including collective self defence. TWENTIETH CENTURY DEVELOPMENTS No more destructive conflict than the thirty years war occurred until the First and Second World Wars. As in 1648 these effected a fundamental reassessment of relations between States.101 These two conflagrations were, however, essentially different. The first was essentially a breakdown in the Concert of Europe ,which had been most successfully in avoiding any Europe-wide or prolonged European conflict for close to a century. The latter was essentially ideological. In the former, major causes of loss of life were the existence of a prolonged military stalemate, brought and the influenza pandemic in the wars aftermath. The military stalemate was the accidental product of the strategic defence capability based on moving troops rapidly by rail to counter any breakthroughs in the front being superior to the largely nonmotorised tactical mobility of the battlefield. The stalemate ended though attrition the gradual breakdown of food supply in Central Europe and adoption of tanks by the allies. Physical destruction of property and atrocities were few.

If it is limited in time the sovereignty is only in abeyance during its duration and not permanently lost. 99 Some aspects of the threat of sanctions are discussed briefly below. 100 Attempts to try the Kaiser as a war criminal after 1918 foundered on the refusal of Holland, whence he had fled, to surrender him for trial. 101 The era of the Napoleonic Wars had led in 1815 only to a fine-tuning of the system in the development at Vienna of the concept of a comprehensive Peace Conference involving all the victors and vanquished. The ultimate success of this venture, following the near disaster occasioned by Napoleons escape from his exile at Elba, terminated by his final defeat at waterloo in June 1815, led to the further concept of the Concert of Europe, whereby the major European powers would meet in conference to defuse conflicts or potential conflicts.

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30 The Aftermath of World War I The 1914-1918 conflict dictated fundamental change. Democracy was hardly a player in 1648, and in 1815 Britain had not sought in any significant way to export its more enlightened political system, except through Castlereaghs insistence on the inclusion of a declaration against the slave trade.102 Swiss independence and neutrality was guaranteed in 1815 as it had been in 1648. Consequently, international law was almost completely devoid of any democratic input before 1918 and there were no international organisations. President Woodrow Wilson had invoked the need to make the world safe for democracy on 2 April 1917 in calling upon Congress to declare war, so the post war world was to be fundamentally different. The League of Nations set up by the Versailles Treaty of 1919, was designed to prevent international conflicts leading to major war. It enjoyed some success in dealing with minor conflicts but failed when it came to those involving major powers.103 In 1919 the major players in the peace negotiations were all, for the first time in such an event, substantially democratic countries, rather than absolute monarchies or empires. However, the Versailles Treaty of 1919 did not generally seek to restrict national sovereignty except in the case of the defeated nations, as in the case of Germany, which was restricted in relation to armaments. It was still largely business as it had usually been conducted since 1648 in relation to national sovereignty. Each state large or small had an equal vote in the League of Nations. Even the League of Nations could be argued to be only a more formalised and sophisticated version of the Concert of Europe established in 1815.104 This was despite the long existence of a view that democracy was an antidote to war.105 James Madison, explained that the reason for allocating the power to declare war to the Legislature in the United States Constitution was that the executive was the branch of government most interested in war.106 Where democracy is defined as complete internal sovereignty, so that there is no exclusion of the military from democratic control, as in pre 1918 Germany, where the Kaiser controlled the army, there is no clear example of two democratic countries going to war. However, there are many examples of democratic states going to war against non-democratic ones.107 However, there were democratic elements in the 1919 settlement. Some disputed border provinces such as Schleswig-Holstein were subject to plebiscite to determine their status in the immediate aftermath of the war,108 or after an interval of time, such

This echoes the end of treating prisoners of war as slaves at Westphalia in 1648. The same may be arguably true of the United Nations. 104 Indeed it is questionable whether it enjoyed as much success. The Concert of Europe only functioned as designed for 7 years until 1822, but was essentially resurrected at various times of crisis. The League of Nations did not function effectively after 1933. 105 Commonly Kant receives the credit for this but the view as widespread among delegates top the American Constitutional Convention in 1787, and see Michael W. Doyle: Kant, Liberal legacies,a dn Foreign Affairs, 12 Phil. & Pub. Aff. 205, 223, citing Thomas Paine for the assertion that democracy and war are incompatible. 106 Letter to Thomas Jefferson, 2 April 1798, in 6The Writings of James Madison 312 (Gaillard Hunt ed., 1906) 107 Michael W. Doyle: Kant, Liberal legacies,a dn Foreign Affairs, 12 Phil. & Pub. Aff. 205. 108 The result was the return of about one third of the territory acquired by Germany as a result of the Danish-Prussian war of 1864 to Denmark.
103

102

31 as 15-20 years in the case of Saarland.109 Treaty of Versailles separated the Saar area from Germany and assigned it to a governing commission of the League of Nations. For the first time, the Saar area formed its own administrative entity. Other new states formed out of the remnants of the Austro-Hungarian and Russian Empires, were initially set on a democratic and constitutional road, but most had succumbed to dictatorship within 15 years.110 World War II It took a yet more destructive war to lead to the establishment of the United Nations in 1945. There was now a much greater concern with human rights because of the much greater violation of rights of civilians that had occurred in the Second as opposed to the First World War. Atrocities, both military and civilian, and destruction had occurred on a huge scale. The war was to a great extent ideological, with the United Kingdom and the United States and their allies fighting for the preservation of democracy against Nazi and fascist dictatorship. On the Eastern front there was an immense clash between the alternative totalitarian philosophies of Nazism and Communism. Hence, the adoption of human rights covenants beginning with the International Declaration of Human Rights 1948, and the spawning of a plethora of international organisations aimed at enforcing these rights. The war, the events leading up to it, and its aftermath saw both Hitler and Stalin violating national sovereignty in a way unprecedented since 1648, apart from the activities of Napoleon. In World War I, only Belgium had been almost exclusively occupied, and that only as transit route to France, which remained under occupation during the four year stalemate on the Western Front. Pre war, Hitler annexed Austria in 1938, and in March 1939 the remains left of Czechoslovakia after the Sudetenland had been given up to Nazi Germany as a result of the Munich Agreement of October 1938. Invasion of Poland in September 1939 precipitated the outbreak of the war. With Britain and France preoccupied, Stalin took advantage of the situation to attack Finland on 30 November 1939, and when France fell in June 1940, he again took advantage of the situation to occupy Estonia, Latvia and Lithuania. Meanwhile, German forces had occupied Belgium, Luxembourg, the Netherlands, Denmark and Norway. Diminution of National Sovereignty The quantity of international regulation and the momentum of its increase has reached the point where national sovereignty of nation states is being rapidly diminished. The United Nations General Assembly and Security Council may be seen respectively as the embryonic legislature and executive of a world government. A major landmark is the establishment on 1 July 2002 of the International Criminal Court, which may be seen as the prototype of the judicial arm of a future world government. An extremely significant aspect of the arrangements surrounding this Court is that its jurisdiction purports to be binding not only on States that have ratified the treaty establishing it, but also on other States. This is a fundamental departure from the principle that
Its vote on 13 January 1935 to return to Germany by over 90% was seen as a striking endorsement of Hitlers Nazi Regime. 110 For example, Poland in 1926, Bulgaria in 1934.
109

32 sovereign states are only bound by their consent.111 It could be seen as the end of the era of independent sovereign nation states, which essentially came into being in 1648. Recently, a trend of challenging the freedom of people to choose a government of a particular political direction democratically has emerged. In early 2000, sanctions were imposed upon Austria when an allegedly far right party was included in a coalition government. There was no question that the election had not been properly conducted or that the election result had been a proper reflection of the will of the Austrian people. Mostly, these were imposed by other members of the European Union, and as such were extremely questionable given the guarantees of free trade and non-discrimination inherent in European Union membership. The same noises were made in the Spring of 2001 during the Italian election, with a call for sanctions from no less than the Belgian foreign minister,112 coupled with suggestions that the election of a government led by Silvio Berlusconi, which indeed occurred, should not be regarded as a normal democratic change of government. Following the Austrian debacle, the European Union has instituted a system of inquiring into members internal affairs to see if sanctions are in its view justified. Sweden, holding the rotating presidency for the first half of 2001 offered to set this process in train in relation to Italy. Earlier examples of pressuring electorates were the display of bullying of Denmark in June 1992 after its voters initially rejected the ratification of the Maastricht Treaty enlarging the powers of the European Union,113 and massive selling of the Swedish Kronor a few days before the referendum vote on European Union membership in late 1994, which, may have caused a pronounced late swing which changed the outcome from no to yes.114 With a rise of allegedly right wing parties in European elections in late 2001 and early 2002 campaigning on such issues as illegal immigration, the crescendo of such warnings reached fever pitch. In this highly charged atmosphere, the leader of a Dutch party, Fortuyn, was assassinated days before the Dutch election in May 2002. The Government, apparently concerned that this event would boost support for the slain leaders party, seemed to want to postpone the election, but it was politically not on, when the surviving members of that party were adamant that the election should go ahead.

See The Convergence of Legal Systems in the 21st Century (Edited by G.Moens & R.Biffot ISBN 1 876344 09 1: the article contributed by Alexis Goh and Steven Freeland discussing the International Criminal Court established on 1 July 2002, and explicitly mentioning the inherent tension between national sovereignty and international law. 112 One of the grounds for outrage was the inclusion in the prospecting governing coalition of the Forza Nationale described as neo-fascists or derived from the pre 1946 fascists and so supposedly undemocratic, although the talk is generally more of possible violations of human rights particularly those of foreigners or minorities rather than of democracy. Interestingly, no similar outrage is expressed when former communists take office. 113 A similarly undemocratic attitude is currently on display of the defeat of the Nice Treaty at referendum in Ireland on 7 June 2001, with representatives of the European Union stating categorically that the European Union could not be held up by one country. This approach renders nugatory in practice the provision in the European Union Treaties that changes must be approved by countries in accordance with their respective constitutional requirements; a provision that has historically always been highly emphasised when the voters of a country are deciding whether to enter the European Union. 114 Norway still voted no. Perhaps, it is significant that large oil revenues make the Norwegian currency less susceptible to manipulation.

111

33 The establishment of the European Union has caused a particularly great loss of national sovereignty among its members. Perhaps, what we are seeing is a reversion to the pre-Westphalian domination of the Western part of the continent by an empire. With expansion to the East planned for the next few years. Paradoxically, this is taking hold at much the same time as the Eastern part of the continent has escaped from domination by the Soviet empire.115 The rushing through the Turkish Parliament, at the beginning of August 2002, of internally unpopular measures116 in an attempt to curry sufficient favour to be allowed to enter the European Union is a prime example of the politics of empire taking over from democratic governance within a context of National Sovereignty. DEMOCRATIC LEGITIMACY OF INTERNATIONAL LAW AND INTERNATIONAL ORGANISATIONS Customary international law has always been subject to potential attack on grounds of lack of democratic legitimacy as the product of state practice by states of which most have not been democratic in nature. The United States and the United Kingdom as permanent members of the Security Council of the United Nations are two of only seven countries to have maintained unbroken democracy throughout the 20th century.117 However, throughout the life of the United Nations at least one of the permanent members has been a dictatorship.118 Although a majority of founders were democratic countries, the march of many former colonies to independence and their all too often prompt discarding of democracy combined with the spread of communist rule and the frequency of military takeovers dominating the scene for much of the post 1945 era has made the majority of member states undemocratic for most of the existence of the United Nations. This has brought about widespread cynicism regarding its operation in democratic countries since the early 1960s. While the activities of the United Nations have generally been inimical to national sovereignty through its encouragement of treaties that restrict countries freedom of action, and which are backed up by the threat of sanctions, they have not been entirely consistent. While being an effectively sovereign state should have been a prerequisite for membership this has not been enforced. During the Cold War the satellites of the Soviet Union in Eastern Europe, who clearly did not enjoy sovereignty in practice were allowed to remain members, as were several republics of the Soviet Union. If this was defensible on the basis that to do otherwise would have involved a highly political process of inquiry into all states affairs, allowing parts of the Soviet Union such as Byelorussia to also be members certainly was not. Consequently, there is a sharp edge to the always extant tension between international law and national sovereignty. Countries with long democratic traditions often evince strong majority support for the maintenance of national sovereignty at the expense of

Umberto Bossi, the leader of the Northern League a small part of the Right coalition triumphant in the May 2001 Italian elections is in the habit of describing the European Union as the Soviet Union of the West! 116 Including abolition of the death penalty and concessions to the Kurdish minority. 117 The others being; Australia, Canada, New Zealand, Sweden and Switzerland. 118 At first Russia and later China.

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34 international law. The latter is seen as inferior in legitimacy to the long democratic traditions expressed by the countrys own national sovereignty. Prime examples are: 1. The repeated rejection by the Swiss voters at referendum of proposals to join the international organisations of the United Nations and the European Union, although the Swiss voters finally relented in relation United Nations membership in March 2002 2. The refusal of the United States Senate to ratify treaties seen as limiting national sovereignty in favour of international organizations;119 3. The refusal the United States and United Kingdom to participate fully in the United Nations Educational, Scientific and Cultural Organisation (UNESCO) for upwards of a decade from the early 1980s; 4. Recent refusals by Australia to co-operate with United Nations committees dealing with human rights; 5. Concern that the plethora of international law of various forms hamstrings democratic leaders in their attempts to protect their countries and their constitutional processes from external or internal threats of force such as terrorism. This may arise simply from the uncertainty in the legal position that is thereby engendered. The problem is compounded by the ease with which any countries can sign and ratify treaties to which a majority of their voters may be opposed. Probably, only the United States and Switzerland have enjoyed adequate safeguards in this respect.120 In the United States, the constitutional requirement of a two thirds majority in the Senate for ratification,121 has meant that a very broad consensus is needed before ratification can take place. Although the Swiss appear, in their new Constitution approved in 1999, to have limited national sovereignty in of favour of international law,122 it is probable that ultimate sovereignty still lies with the Swiss voters through their control of the amending procedure through the process of initiative and referendum.123 In Switzerland treaties which are: 1. Of unlimited duration and may not be terminated; 2. Provide for the entry into an international organization; or 3. Involve a multilateral unification of law;

Recent examples are the proposal to establish an international criminal court and the Kyoto agreements on action to counter emissions of greenhouse gases. 120 Ireland has also been constrained by its constitution to hold a referendum with each amendment of the European Union Treaties, most recently in connection with the the ratification of the Nice Treaty, when it was defeated at referendum on 7 June 2001. Ireland was the only member of the European Union to hold a referendum as an eelement of the ratification process. Denmark held a referendum in connection with the Maastricht Treaty, which was defeated intitially in June 1992. The Norwegian voters have twice rejected at referendum proposals for membership of the European Union: in 1972 and 1994. 121 United States Constitution, Art II, s 2(2): Presidents power to make treaties with the consent of two-thirds of the Senate. 122 See Swiss Constitution Art 5(4), which provides: The Confederation and the Cantons shall respect international law. See also Arts. 139(3),193(4) and 194(2), which provide that the constitution may not be amended so as to violate mandatory principles of international law. H, this would not seem necessarily to preclude a three stage process of proceeding first by removal of Art 139(3), then by removal of the other two provisions. 123 See Swiss Constitution Art 139-141.

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35 must be submitted for referendum approval at the request of 50,000 voters or 8 Cantons. In the English legal tradition, ratification only requires legislative approval to alter domestic law, although this at least provides greater safeguards than exist in some countries with a monist tradition, where any international obligation assumed by the state may automatically override domestic law. Dissatisfaction in the United Kingdom over European Union membership may be largely attributed to the lack of referendum approval to original membership and subsequent variations of the European Union Treaties. In Australia, which has inherited the English position with regard to ratification of treaties, there has since the early 1980s been acute controversy over the use of international treaties by the Federal Government to encroach upon the autonomy of the States.124 Australia is in the peculiar position the balance of its constitution can be affected by ratification of a treaty. This is because entering into a treaty brings a matter within the sphere of external affairs on which the Federal Parliament can legislate to give effect to the treaty, even though, apart from the treaty only the States would have power to legislate in this matter.125 Accordingly, it amounts to a backdoor method of amending the Australian constitution by ordinary legislation, without obtaining the approval of the electors at a referendum.126 Recently, the Parliamentary Treaties Committee has been much more active in publicising treaties and engaging in public consultation. The controversy often is increased by opponents often seeing international law and treaties as a device to impose and entrench a new form of universality in the form of political correctness upon them.127 AUSTRALIAN SOVEREIGNTY It is interesting to compare the comparative loss of national sovereignty between the United Kingdom and another leading common law country, Australia. In 1931 the United Kingdom Parliament passed the Statute of Westminster, which gave legislative form to decisions agreed to at Imperial Conferences held in 1926 and 1930. In particular, the self-governing Dominions were to be regarded as autonomous communities within the British Empire, equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, though united by a common allegiance to the Crown, and freely associated as members of the British Commonwealth of Nations. The Royal assent was given to the Statute of Westminster on 11 December, 1931 and that date is, in constitutional terms, the birthday of Australia as a sovereign nation. However, it was not until the mid 1980s that the Australian Commonwealth and States could agree in order to make a joint request to the United Kingdom Parliament under the Statute of Westminster for legislation to terminate the residual areas of United Kingdom responsibility. The
It is able to do this by virtue of the external affairs power in the Australian Constitution, s.51(xxix) as expansively interpreted in the Tasmanian Dam Case (1983) 158 CLR 1. 125 Tasmanian Dam Case (1983) 158 CLR 1. 126 As required by s.128 of the Constitution. 127 See Upholding the Australian Constitution; Volume Eleven: Proceedings of the Eleventh Conference of The Samuel Griffith Society, Rydges Carlton Hotel, Melbourne 9 - 11 July, 1999.
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36 result was the Australia Act 1985 which formally removed the last vestiges of responsibility of the United Kingdom Parliament, by providing that it would not in future legislate with respect to Australia.128 As countries go Australia has suffered comparatively little reduction in national sovereignty. As a common law country it has inherited a dualist tradition, whereby international law has a much more limited effect in domestic law, in the absences of its incorporation by domestic legislation, than in countries with a dualist tradition, which is common in civil law countries. Even during its period of high activism, during most of the 1980s and 1990s, the High Court did not significantly overturn this tradition,129 although it allowed unincorporated treaties to influence the development of the common law and statutory interpretation.130 However, contrary to this principle, one dissenting federal court judge has held that a norm of customary international law can create a crime in Australian law, without any legislation.131However, its expansive interpretation of the external affairs power allowed entry into international treaties to supply an open-ended method of expanding federal legislative power at the expense of the States.132 It has not surrendered sovereignty to a regional grouping such as the European Union. Also, it is generally, theoretically at least, able to terminate most if not all of its treaty obligations should it wish to do so. Recent rejection of criticism by United Nations Committees indicates a willingness to robustly defend its national sovereignty on occasion. Furthermore, its internal sovereignty is not compromised by parts of its constitution being unamendable or by answerability to international courts, until and unless the treaty establishing international criminal court jurisdiction is ratified.133 ECONOMIC CONSEQUENCES OF THE DIMINUTION OF NATIONAL SOVEREIGNTY When considering the national and international legal framework underpinning international trade and business, national sovereignty may in the past have been all too often seen as a negative phenomenon through the operation of sovereign risk. Sovereign risk in relation to trade or to a business project may be defined as the risk of action by a sovereign government which is significantly and seriously adverse to
A similar provision was included in the Canada Act 1982, which patriated the Canadian Constitution, which had remained in the British North American Act 1867, as amended, owing to a 50 year impasse between the Provinces and the Canadian Government over terms. 129 See discussion by J.Trone in The Convergence of Legal Systems in the 21st Century (Edited by G.Moens & R.Biffot ISBN 1 876344 09 1) at 50-52; referring inter alia to Dietrich v R (1992) 177 CLR 292 at 305; Minister for Immigration and Ethnic Affairs v Teoh (1985) 183 CLR 273 at 286-287; he also compares the Australian situation with the greater influence of international law allowed by the courts in Canada. 130 Minister for Immigration and Ethnic Affairs v Teoh (1985) 183 CLR 273 at 287 (Mason CJ and Deane J) 131 Merkel J. in Nulyarimma v Thompson and Buzzacott v Hill (1999) 165 ALR 621, at 642, 653-655 and 668. 132 Tasmania v Commonwealth (1983) CLR 1 the Tasmanian Dams Case. 133 It is true that Australia is subject to the jurisdiction of the World Trade Organisation (WTO). However, the only sanction that can be awarded for breach of WTO rules is authorisation of retaliatory customs duties, which is precisely the action that the other State involved would be most inclined to take unilaterally in the absence of the WTO structure.
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37 the trade or project, and is in some respect not in accordance with reasonable expectations of government action. Traditionally, the main concerns were the imposition of selective and punitive taxation on a project operator or expropriation of assets or their nationalisation without adequate compensation or prohibition of operations without reasonable cause or imposition of trade sanctions. Action may be by any of the organs of government, executive, legislative or judicial. However, in the past it was mostly the executive government which was to be feared as sovereign risk was a problem largely confined to autocratic regimes in which there was no independent legislature or judiciary. Accordingly, during the cold war, Australia and Canada were particularly favoured for resource projects as they were the only large land masses well endowed with resources which enjoyed low sovereign risk through political stability with independent judiciaries, democratically elected parliaments and moderate politics. Socialist and Communist regimes could nationalise foreign assets or repudiate debt immune from military consequences and to a large extent financial and trade consequences through the Soviet umbrella. Military regimes could act likewise in Africa and Latin America, knowing they could use the geopolitical divide to avoid isolation. A prime example was Cubas expropriation of US assets in 1959-1960. In the 19th century and early 20th century before the world became ideologically divided, countries were sometimes blockaded by European powers to coerce them into paying debts. This operated as a sanction against such behaviour in defiance of accepted norms of international trade and finance In the late 1980s the world changed with the collapse of the Soviet Empire. Meanwhile, China was adopting an increasingly capitalist economic system and there was a growing realisation that advancement economically and in other ways. Consequently, these arbitrary activities have a much higher economic and political cost. A country that expropriates property by executive or legislative action will not only find it virtually impossible to attract foreign investment by becoming taboo in the international financial markets but may face retaliatory trade measures and sanctions. No longer can they take refuge in the succour of the communist bloc. There is also a much greater appreciation of the advantages of being part of the global free market economy and trading system, and of the inability for countries to advance economically if they go it alone and try to operate without foreign investment.134 The result is that many previous no go areas for resource investment, particularly in South America and the former communist bloc, are now reasonably secure to do business. Consequently, the former triple A democracies of Australia, Canada and New Zealand now have far more competition in attracting resource investment. Paradoxically, they have at the same time become in some respects areas of high sovereign risk. This has come about largely through an initial spurt of judicial activism in the area of native title. In Australia the Mabo135and Wik136 decisions and

An example is Fiji after the 1987 coup. Eventually they adopted a new more moderate constitution in 1997 abandoning many of the original objectives of the coup after the coup leader Rambuka had become convinced that it was essential for economic reasons. 135 Mabo and others v Queensland (1992) 175 CLR 1 F.C. 92/014., 136 The Wik Peoples v The State of Queensland & Ors; The Thayorre People v The State of Queensland & Ors Matters Nos B8/B( of 1996

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38 the consequent legislation137 have created huge uncertainty and driven almost all mineral exploration offshore. The situation is, if anything, worse in Canada through extremely liberal interpretations of native title rights. These moves were encouraged by the concern shown by international bodies, such as United Nations committees in respect of these issues. By contrast, Argentina and Chile have during the 1990s enjoyed times of booming mining exploration. Judicial activism as a significant element of sovereign risk has been on the increase in recent decades and has been also triggered by environmentalism or a desire to further other political agendas. These may be bringing about a de facto federal system as with the jurisprudence of the European Court of Justice in respect of the European Union or strengthening the central power in the case of an existing federal system as in the case of the High Court of Australia, particularly in the 1980s and early 1990s.138 International tribunals seem to have been particularly prone to these activities, such as the already mentioned European Court of Justice, and more recently the World Trade Organisation (WTO) disputes panels and appellate bodies.139 It is all too easy to regard the decline in national sovereignty as good for international trade and business through limiting the adverse operation of sovereign risk. However, it is suggested that this view may prove illusory for several reasons. Firstly, the restriction of sovereign power at the national level does not cause it to cease to exist but merely transfers it to the international level, where it may be exercised by officials unsympathetic to business. As nation states are inherently in competition for trading opportunities, this operates as an inbuilt check under an international system based on nation states enjoying national sovereignty. States operating under an anti-business or anti-free trade policy or ideology such as socialist or communist or corrupt political systems will, generally, underperform economically and may eventually collapse for this reason.140 There is no such inbuilt check where there is international regulation. Quiggin141 has argued that the Amsterdam Treaty, concluded in 1998, effectively entrenched social democracy as the constitutional framework of the European Union and would enable its members to defy the market forces that have furthered free market capitalism in recent years. Of course, such entrenchment effectively severely limits the scope of democratic choice in the member states, as the rules of the European Union cannot be changed except by a qualified majority of the member states or in some cases by unanimity. Accordingly, socialists and social democrats were able to capitalise on their control of most European Union governments in 1998 to lock in their political agenda indefinitely. This tends also to happen at the international level since most bureaucrats on these bodies share a similar set of values and political opinions on key issues, which tends

Native Title Act 1993 (Cth.) See, for example, the Tasmanian Dam Case (1983) 158 CLR 1. 139 See reports in the Financial Review on 16 January 2002 of the rejection of a US provision designed to relieve double taxation on the one hand and the introduction of environmental considerations as wholesale justifications of trade restrictions on the other. 140 Economic failure is widely regarded as the main underlying cause of the sudden collapse of Sovietled communism in 1989-1991. 141 John Quiggin of the Queensland University of Technology, and a Research Fellow at the Australian National University, Research School of Social Sciences, in an article in the Financial Review 17 January 2001, p.46.
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39 to oppose free market capitalism in favour of greater governmental control of the economy. Secondly, the invasion of international law into national legal systems renders the law subject to much greater uncertainty. For example, business projects supported by a national government and/or backed by national legislation, may be impeached before international bodies or even national courts on the basis of international conventions or treaties dealing with such matters as human rights or minorities or environmental matters. Thirdly, the expanded role of international law has led to greatly increased use of economic and even military sanctions many of which are directed at or even triggered by economic, trade or business activity both international and internal.

A THROWBACK TO THE MIDDLE AGES Both modern democracy and modern free market capitalism emerged and flourished under the Westphalian regime of national sovereignty, and the pime movers were the leading common law countries. It is unclear that either can survive in a post-modern era where international law overrides national sovereignty. This may turn out in many respects to be a reversion to a state of affairs more akin to the pre-modern era of imperial regulation and legal uncertainty. Parallels between Post-Modern and Pre-Modern Eras A number of parallels may be drawn between a world order resulting from the continuation of current trends and fundamentals of the order which existed in most of Europe prior to the emergence of the modern era. Medieval Europe was dominated by one or more empires,142 which incorporated the hierarchical structure of feudalism and guilds, an early version of the corporate state. It was also under the overarching religious authority of the pope as the head of one all encompassing church which increasingly ruthlessly suppressed opposition which it characterised as blasphemy or heresy, and propagated initially by a militant priesthood, although la. Secular law, outside of a few more liberal isolated areas such as the British Isles, or parts of Switzerland or Scandinavia, often amounted to little more than the will of a prince, laid down by authority. These laws were usually made and enforced with little regard to popular sentiment by judges appointed to do the royal bidding, which enjoyed little or no independence. The post modern era may be argued to be becoming more and more dominated by a collection of views and shibboleths generally described by their opponents as political correctness. This value system could be seen as the equivalent in the post modern era of the religion of the Middle Ages, as it is generally not based on positions established by such tools as logic or free and open debate. To dissent from it is to suffer opprobrium and excoriation by the politically correct as a person unsuited to hold any
Notably the Papacy, the Holy Roman Empire, founded by Charlemagne in 803 and finally abolished by the personification of the Napoleonic Empire after he had conquered most of Europe in 1806.
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40 responsible position. The priesthood is the army of politically correct that increasingly dominate the educational system, the media, the public service, some churches, the legal profession and the judiciary in most Western countries. The political elites and to a lesser degree the social elites usually find this philosophy far more attractive than do the majority of the population. Consequently, increasingly they have a disdain for democracy and seek to circumvent manifestation of contrary popular opinion through the ballot box. To this end they employ such devices as entrenchment of their positions in international conventions which they constantly state must be treated as sacrosanct as solemn international obligations,143 politically correct interpretations of constitutional provisions by judges,144 or filtration and dilution of popular election by indirect election or appointment of officials. A prime example of the latter is the European Union where the executive arm, the Commission, is indirectly appointed by Governments of member States for quite long fixed terms, can only be removed by a two-thirds vote of the European Parliament, and after such vote may apparently still be left in office for many months on the pretext of dealing with current business, as happened in 2000. There is also a concerted push to deny media space or time to opponents, for example, scientists and others who do not accept the need for the Kyoto Protocol in relation to alleged global warming as an article of faith. Free speech is to be denied to opponents of central doctrines of political correctness, for example, in the United Kingdom by increasingly stringent restrictions on freedom of speech.145 These methods may be employed in combination, as where the Convention on the Elimination of All Forms of Racial Discrimination requires States to forbid freedom of speech in certain areas. The doctrine of purgatory, which began life in the 12th century, even has its post modern equivalent with the obsession with demanding and making apologies146 and allowing huge compensation claims to redress wrongs allegedly committed far in the past. CURRENT TRENDS Michael Evans has recently argued147 that the 1990s saw a reduction in the relative significance of strategic geography, because the globalisation of the information era does not appear to allow any state or society to retreat behind physical or moral borders. Historically, geography has been the crucial feature in influencing the effects
The Refugee Convention is particularly frequently cited in this way The Supreme Court of Canada, European Court of Justice is probably the greatest exponent of this, since the Australian High Court and United States Supreme Courts have retreated from earliest activist approaches 145 The latest tightening up occurred with the latest Race Relations Act coming into force in June 2002. This gives government spokesmen a huge advantage of others in debate over such issues of huge public concern as illegal immigration, as the government must consent to a prosecution. 146 For example, United Kingdom Prime Minister Blairs apology to the Irish in the late 1990s for the 1845-6 potato famine, and repeated demands in recent decades in Australia for apologies to aboriginal peopled 147 Clausewitzs Chameleon: Military Theory and the Future of War, 8-15 Quadrant November 2002
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41 of conflicts on States and their outcomes. Isolated states have had a great survivability in situations of war and conflicts. However, the advantages of geographical isolation have not totally disappeared. They have diminished and the degree of geographic isolation needed has increased. Thus the immunities conferred on the United Kingdom by geographic isolation have diminished more than those enjoyed by the United States and Canada, which, in turn, have diminished more than those enjoyed by Australia and New Zealand. CHALLENGES TO NATIONAL SOVEREIGNTY SINCE 1648 SUMMARISED One of the recurrent challenges to the post 1648 modern world order of national sovereignty has been attempts to create a new European or World Empire. The first to attempt this was Napoleon from 1805-1815. The immediately preceding revolutionary wars stemming from the French Revolution of 1789 may be distinguished as responses to attacks on revolutionary France by reactionary powers or a the very most as attempts to spread the revolutionary gospel to these countries. While the revolutionaries may have hoped that most or all countries would follow the French revolutionary model there was, pre Napoleon, no clear intention to rule them all from Pairs, unlike the transparent attempts at World domination by the Bolsheviks from 1917 and the German Nazis from 1933-1945. The activities of Napoleon, Hitler and Stalin were all hugely destructive of national sovereignty through invasion and conquest of numerous countries and subversion of others, while expanding their own countries into empires, at the expensive of subsuming its sovereignty into that of an empire. This is in contrast to the run of the mill despot or dictator whose emphasis was generally on defending their countrys national sovereignty, as the source of their despotic power. While such persons might occasionally invade another country they were not challenging the basis of the Westphalian concept of national sovereignty. Some dictators such as Mussolini and Mao Tse Tung stood somewhere between these two positions These three challenges were essentially throwbacks to the medieval age of empires, even attempts to recreate a new Roman Empire. All involved the destruction of national sovereignty or the defeated or conquered territories, unlike the colonial empires, mostly of European powers, which were not a systematic attempt at world domination. Colonial expansion also was often justified as spreading the benefits of European civilisation or as not infringing national sovereignty as it often operated in areas seen terra nullius and certainly outside the territory to which Westphalian concepts of national sovereignty had been applied. An interesting footnote is the way colonial expansion was arrested in the Americas by the promulgation of the Monroe Doctrine by the United States President of that name in 1823. Furthermore, colonial expansion did not simply involve outright conquest, but settlement of unpopulated or sparsely populated territories, often with treaties being made respecting the interests of the indigenous propulations to some degree.148 As such colonial expansion, while it often greatly impeded the development of national
For example, the Treaty of Waitangi 1841, in New Zealand, various treaties byt the British Crown with indian tribes in North Ameridca and elsewhere and instructions to explorers and settlers to respect natives ,as to Governor Phillip in respect of New South Wales in 1788.
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42 sovereignty of non European and, after 1823 non-American States, was in no way a fundamental challenge to the post Westphalian international order. Since 1945 the post-Westphalian structure has been subject to more subtle attack. The advocates of world government at the expense of national sovereignty have increasingly operated through the development of international law and international organisations such as the United Nations and its agencies or regional organisations such as the European Union. This has been particularly so since the fall of most communist regimes in 1989 eliminated that vehicle to destroy the national sovereignty of states. Many of the former supporters of communism immediately joined forces with those advocating increased reach of international law. IMPACT OF TERRORISM Clausewitzs dictum that war is the pursuit of diplomacy by other means was reversed by Palestinian terrorists from the 1960s have used diplomacy as other means to pursue their unresolved conflict with the State of Israel since its inception. More recent non-state participants in international terrorism, notably the Al Qaeda network do not even engage in any form of diplomacy so Clausewitzs dictum has no application. Furthermore, the borderline between conventional state action and terrorism has been blurring, with state supported terrorism originating in the late 1960s after the 1967 Arab-Israeli War, with the Palestinians and their supporters such as the Libyans in the early days and later Iran, after the 1978 Islamic Revolution, and later Iraq. The relationship between the Taliban regime in Afghanistan and AlQaeda brought the distinction between the traditional state and terrorist organisations to vanishing point.as did the recent discarding of uniforms and irregular operations of Iraqi forces in the Second Gulf War. The current wave to terrorism propagated by extremist Muslims presents another new challenge to the post-Westphalian order. As the threat they present cannot be identified as a State-type organisation operating out of defined territory, it cannot be effectively neutralised by the traditional methods of defending national sovereignty against threats emanating from another State or States, such as diplomatic pressure, economic sanctions or conventional warfare. Where the activities of such terrorists are widespread such as in Lebanon since 1975, Palestine since the establishment of the Palestinian Authority and Afghanistan, prior to the overthrow of the Taliban in late 2001, they may compromise the national sovereignty of the host state to the extent that it ceases to exist or cannot be effectively exercised. Even short of this level of activity, such terrorists may cause disproportionate economic and social costs through the impact of the cost of the counter-terrorist measures that they provoke. Such costs may include the intangible costs of feelings of insecurity and of the loss or restriction of cherished rights and freedoms inherent in counter terrorist legislation. Terrorists have been around for a long time, certainly since Irish struggle against British rule took a violent turn in the late 19th century. However, before the arrival of the current breed of fundamentalist Islamic terrorists their objective were generally limited to some form of national independence struggle, rather than wider international objectives of propagating fundamentalist Islam and overthrowing or attacking any states or governments standing in their way.

43 Responses have varied between the use of military force as in warfare and treating the problem as one of law enforcement, or some combination of the two. Hence, the uncertain status of those currently detained at Camp X-ray in the United States military base at Guantanamo in Cuba. The former has been used as in the case of Afghanistan in months after the 11 September 2001 attack on targets in the NorthEastern United States, the latter in relation to members of Al-Qaeda cells located in many countries. In the former case, it was possible to regard the Taliban Regimeas so compromised by involvement with Al-Qaeda, as to justify a military attack on Afghanistan designed to overthrow that regime. This approach is highlighted by the recent definition in Australia of an act of terrorism contained within s 3 of the Security Legislation Amendment (Terrorism) Act 2002 and now inserted into Division 100.1 of the Criminal Code. This proceeds on the basis that legislation is only needed to deal with terrorism perpetrated by non state actors, this treating terrorism as a law enforcement problem distinct from traditional warfare between States. Accordingly, it may be argued that the anti-terrorist legislation does not address the grey area between the two. This is of major significance since a traditional military threat triggers many Commonwealth Government powers under the expanded Royal prerogative in time of war and ability to rely on the Act of State doctrine as a defence. The extent of these powers is still largely ultimately a matter of judicial interpretation. State operations against terrorism have a chequered history, often suffering from a lack of clear strategy and sufficient long term political will to achieve ultimate success. Operations against the Malayan Communists from 1948 to 1960, were successful in the context of a colony/protectorate progressing to independence, where there was little objection to draconian internal security legislation, and general political unity as to the objective. In contrast operations against the IRA in Northern Ireland from 1968 to date can hardly be described as successful is the face of political disunity among the opposition to the terrorists. There is always the potential problem that one persons terrorist may be anothers freedom fighter. Terrorists generally seem to thrive where there is political or cultural disunity stemming from tribalism or multiculturalism in a State. In World Wars I and II wholesale internment of enemy aliens prevented effective sabotage of the war effort from these sources.149

THE RELATIONSHIP BETWEEN NATIONAL SOVEREIGNTY AND THE COMMON LAW

It has been argued in this paper, largely by comparison of the respective developments of the common law and national sovereignty, that these developments are linked. The common law is intrinsically a far more nationalistic system of law, having originated solely in one country, enjoying the benefits of geographic isolation. The common law has also been largely territorial in operation, in contrast to other legal systems
Although the original trigger for internment of Germans in the United Kingdom in World War I was violent attacks on them following heavy losses at the Somme in 1916. In World War II interment operated at the outset.
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44 based very much on concepts of personal law. The common law essentially dictates a dualist, rather than monist approach to international law. This requires a parliamentary approval of any impact of an international agreement on municipal law. The common law legal system and its constitutional influence seems to have been a major factor in preserving national independence. Of the small number of countries maintaining a constitutional system, which avoided a change of government by force throughout the 20th century, Australia, Canada, New Zealand, United Kingdom and the United States are common law countries. The only others are Sweden and Switzerland. Significantly, they are two of the civil law countries where the influences of Roman law on their legal, political and constitutional systems are among the least. Napoleon, the first notorious arch-violator of the Westphalian settlement, was also the architect in 1803 of the form of civil law most antipathetic to common law notions and concepts. Of course, it may be argued that the fundamental cause of this is geographic isolation. Interestingly, the common law predominates in geographically isolated countries, although this may be a product of the reach of British naval power from the16th to the 20th centuries. However, no common law country succumbed to Marxism during the cold war, and there is a much better track record in maintaining elements of democracy and constitutionalism among ex-colonies with common law systems.150 The link with national sovereignty lies in the need for strong national sovereignty to effectively repel external attempts to change a countrys legal, political or constitutional system.

150

For example, India, Malaysia, Singapore and most ex-British colonies in the Caribbean.