Independence (sometimes referred to as political independence) is the central element of statehood in the modern (post-Westphalia) system of international law. One of the traditional requirements for statehood is independence in internal and external affairs. Sovereign States are commonly referred to as sovereign and independent States, in contrast to dependent States. So much is independence the essence of sovereignty that the two terms are often used more or less interchangeably. The term ‘independence’ is sometimes reserved for a basic requirement or criterion of statehood, while ‘sovereignty’ is an incident or consequence thereof.
While much depends upon context, independence is generally taken to refer to the situation where a State has exclusive competence in regard to its own territory. Yet all States are subject to the rules of customary international law, and one of the attributes of sovereignty is the capacity to enter into treaties and other international engagements, which the State is bound to carry out in good faith.
Sovereignty and independence in no way mean that a State is above the law. Indeed, in an era of interdependence and integration States are frequently subject to very important limitations on their freedom of independent action. But since these limitations arise from the free agreement of the State they do not compromise its sovereignty and independence, at least in so far as it is free to divest it itself of such constraints, through negotiation or otherwise. As the Permanent Court of International Justice said in the Wimbledon case (and repeated often), “the right to enter into international engagements is an attribute of State sovereignty”. “Membership of the European Union involves an increasing abdication of a wide range of matters including significant fields of external relations, but no one doubts that EU Member States retain formal independence. A fortiori this is true so far of other international organizations possessing lesser powers.” (Crawford, p. 70)
Before the rise of the modern State system (often dated to the century or so leading up to the Peace of Westphalia in 1648) the notion of independence was even more relative than it is today. Most rulers were not truly independent, if only because they owed allegiance to the Pope in spiritual matters and, in many cases, were subject to the authority of the Holy Roman Empire. But the change was more gradual than is often suggested. The Holy Roman Empire continued until 1806. And it was only with the late Eighteenth and the Nineteenth Century that the modern notion of absolute independence reached its high point. The importance of independence continued to be stressed in the Twentieth Century, as many new States gained independence from colonial masters. Yet with growing interdependence among States, and even integration in various continents, and the impact of globalization, the some would question the political significance of independence.
Pronouncements on the concept of independence were legion in the Twentieth Century. Perhaps the most celebrated is that of Judge Huber in the Island of Palmas case:
“Sovereignty in the relations between States signifies independence. Independence in relation to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State. The development of the national organization of States during the last few centuries, and, as a corollary, the development of international law, have established this principle of the exclusive competence of the State in regard to its own territory in such a way as to make it the point of departure in settling most questions that concern international relations.”
The Customs Régime between Germany and Austria case was the occasion for Judge Anzilotti’s famous description of independence:
“[t]he independence of Austria within the meaning of Article 88 [of the Treaty of Saint-Germain] is nothing else but the existence of Austria … as a separate State and not subject to the authority of any other State or group of States. Independence as thus understood is really no more than the normal condition of States according to international law; it may also be described as sovereignty (suprema potestas), or external sovereignty, by which is meant that the State has over it no other authority than that of international law.
The conception of independence … cannot be better defined than by comparing it with the exceptional and, to some extent, abnormal class of States known as “dependent States”. They are States subject to the authority of one or more other States. …
It follows that the legal conception of independence has nothing to do with a State’s subordination to international law or with the numerous and constantly increasing states of de facto dependence which characterize the relation of one country to other countries.
It also follows that the restrictions upon a State’s liberty, whether arising out of ordinary international law or contractual engagements, do not as such in the least affect its independence.”
Independence as a criterion for becoming a State is sometimes distinguished from independence as a criterion for continuing Statehood. In fact, the Customs Régime case itself turned on the meaning of the provisions (including “independence”) of particular treaties, designed to prevent the incorporation of Austria into Germany, hence in the context of an existing State.
Some writers distinguish between ‘formal’ and ‘actual’ independence. Crawford lists a series of situations not derogating from formal independence: constitutional restrictions upon freedom of action; municipal illegality of the government of a State; treaty obligations; military bases or other territorial concessions; exercise of governmental competence on the basis of agency; possession of joint organs for certain purposes; membership of international organizations possessing coercive authority; and other special relations: devolution and its residue. Situations derogating from formal independence are: the existence of a special claim of right (and not on the basis of consent) to exercise of governmental authority over the putative State; and discretionary authority (absent any mechanism of adjudication) to intervene in the internal affairs of the putative State. Situations not derogating from actual independence are diminutive size and resources; political alliances and policy orientation between States; belligerent occupation; and illegal intervention. Cases in which actual independence may be missing include puppet States (Manchukuo) and purported grants of colonial independence (Syria and Lebanon in 1942-6). The temporary occupation of an existing State, for example upon a purported annexation (Kuwait in 1990) or upon military occupation (Iraq in 2003), does not affect its Statehood.
There are many cases where the independence of a purported State has been rejected, and hence its statehood. Manchukuo has already been mentioned. Other cases where statehood has not been recognized because of a lack of independence were the South African homelands (Transkei, Bophuthatswana, Venda) and the Turkish Republic of Northern Cyprus
The independence of sovereign States remains a central feature of the current international system. This is so notwithstanding the fact that many see in the modern world a ‘constitutionalization’ or ‘juridification’ of international society, not least because of the development of a hierarchy of norms in international law, including peremptory norms (jus cogens). In addition, States are no longer the only actors in the international society; there is a trend away from referring to the international community of States towards the international community tout court.
The Island of Palmas case: 2 Reports of International Arbitral Awards 829 (1928)
The Customs Régime between Germany and Austria case: Permanent Court of International Justice, Advisory Opinion, Series A/B, No. 41 (1931)
Rousseau, “L’indépendence de l’Ä–État dans l’Ordre International”, 73 Hague Recueil 171 (1948)
Higgins, The Development of International Law through the Political Organs of the United Nations (1963), 25-42
Verzijl, International Law in Historical Perspective Vol 2, 455-90
Blay, “Territorial Integrity and Political Independence”, in: Max Planck Encyclopedia of Public International Law
Oppenheim’s International Law (9th ed. 1992, Jennings,Watts), 382 et seq
Daillier, Forteau, Pellet, Droit international public (8th ed., 2008), paras. 304-310
Crawford, Brownlie's Principles of Public International Law (8th ed., 2012), 129-133
Shaw, International Law (6th ed., 2008), 211-14
Harris, Cases and Materials on International Law (7th ed., 2010), 96-104
Craven, in: International Law (M Evans ed., 3rd ed. 2010), 224-29
Crawford, The Creation of States in International Law (2nd ed., 2006), 62-89
J. Crawford, The Creation of States in International Law (2nd ed., 2006).