There comes a moment in the life of a legal doctrine when its continued invocation no longer preserves order but conceals decay. Sovereignty, once the great equaliser among nations, increasingly performs this role. It is invoked not to protect peoples but to shield ruling elites who have converted public authority into private dominion. The spectacle of a sitting president arrested by foreign forces shocks the international conscience precisely because it forces a question the law has long avoided: what becomes of sovereignty when it is emptied of consent and sustained only by captured institutions?
The classical law of nations assumed—sometimes naively – that control of the state corresponded, however imperfectly, to some form of public authorisation. That assumption has collapsed across large swathes of the Global South. Elections are held but stripped of choice; courts exist but are repurposed to validate foregone conclusions; security agencies no longer serve the constitution but the permanence of incumbents. What survives under these conditions is not sovereign governance but administrative occupation of the state by force, fraud, and legal ritualism.
Venezuela’s crisis merely dramatizes a condition that is neither novel nor geographically isolated – Nigeria offers a more familiar and, in some respects, more unsettling illustration. Here, elections are routinely conducted amid credible allegations of systemic manipulation, judicial pre-emption of electoral outcomes, securitisation of politics, and the progressive conversion of independent institutions into instruments of regime continuity. Courts that ought to arbitrate disputes increasingly function as sites of post-hoc legitimation; electoral bodies operate with formal autonomy but substantive capture; law enforcement agencies are deployed asymmetrically. Yet the international community continues to speak the language of sovereignty, congratulating procedural milestones while ignoring the hollowing out of popular consent beneath them.
This is the deeper crisis confronting international law: it treats sovereignty as a territorial fact rather than a relational condition. It asks who controls the capital, not who authorises that control. As a result, regimes that have extinguished all meaningful avenues of internal accountability continue to enjoy the full panoply of external protections.
Non-intervention, in such circumstances, ceases to be a neutral principle. It becomes an accomplice to democratic dispossession.
Defenders of the traditional order insist correctly that allowing powerful states to judge the legitimacy of others invites abuse. But this objection, while real, is incomplete. It assumes that the present arrangement is neutral, when in fact it already privileges those who successfully capture their domestic institutions.
International law’s refusal to interrogate internal legitimacy does not prevent abuse; it merely shifts it inward, abandoning populations to rulers who invoke sovereignty only after destroying everything that once gave it meaning.
Nigeria again illustrates the point. Decades of international election observation missions have produced reports heavy with diplomatic caution and light on consequence. Fraud is noted, violence regretted, irregularities “raised with authorities,” and the cycle resumes. Sovereignty is preserved, but democracy is not. What is defended is not self-determination but stability for its own sake—a stability that benefits elites while leaving citizens trapped in a constitutional theatre devoid of freedom and choice.
It is against this backdrop that arguments justifying extraordinary external action must be understood. The claim is not that illegitimacy alone authorises intervention, nor that unilateral force should become a new norm. The claim is narrower and more disturbing: that sovereignty has been systematically repurposed as a legal alibi for permanent state capture, and that international law has yet to develop an adequate response. Where constitutional order has been structurally dismantled and elections rendered instruments of exclusion rather than participation, the traditional deference to territorial authority begins to look less like restraint and more like abdication.
The arrest of a leader who has privatised the state apparatus is therefore defended, in post-modern terms, as an act directed not against a people but against those who have usurped their political agency. Sovereign immunity, in this view, is not a metaphysical entitlement but a functional doctrine contingent on the existence of a legitimate public order. When that order has been deliberately extinguished, sovereign immunity protects not governance but impunity.
Yet this justification remains perilous. If legitimacy is determined unilaterally, international law risks dissolving into hierarchy, where power confers both judgment and enforcement. Nigeria’s history offers ample reason for caution: external interventions, whether economic or military, have rarely been disinterested, and often deepen dependency rather than restore autonomy. The danger is not hypothetical. A world in which powerful states reserve the right to arrest “illegitimate” leaders is one in which sovereignty becomes conditional on geopolitical favour.
International law has always been in some measure, as Prof Chidi Odinkalu correctly puts it ‘…a robust contest between idealism, realism and a dose of cynicism …’, and thus finds itself trapped between two failures. Absolute sovereignty shields authoritarian capture; conditional sovereignty risks imperial discretion.
The Venezuelan episode merely exposes this unresolved tension. Nigeria’s experience confirms that the problem is structural, not episodic. The law has not yet found a way to distinguish between a state and a captured state without empowering domination in the name of reform.
What is clear, however, is that the status quo is no longer defensible. A legal order that continues to validate elections emptied of choice, courts emptied of independence, and constitutions emptied of constraint cannot credibly claim to serve democracy or self-determination. If sovereignty is to survive as a meaningful principle, it must be re-anchored to consent, accountability, and the genuine possibility of legitimacy and political change.
Until then, sovereignty will continue to function as a vocabulary of excuse—invoked after the damage is done, and abandoned when power finds it inconvenient.
The challenge before international law is not whether to preserve sovereignty, but whether it has the courage to rescue it from those who have turned it into an instrument of hijack, bringadage, and repression.
Dr. Ogwuche is the President of the Campaign for Social Justice and Constitutional Democracy in Africa, based in Port Harcourt and can be reached at festusogwuche@gmail.com
