Territorial Modifications and Breakups in Federal States

1996 ◽  
Vol 33 ◽  
pp. 41-74 ◽  
Author(s):  
Luzius Wildhaber
Keyword(s):  
International Law ◽  
Constitutional Law ◽  
Self Determination ◽  
Federal States ◽  
Domestic Law ◽  
Extensive Practice ◽  
The Way

SummaryThis article considers the way in which territorial modifications and breakups in federal states are dealt with in domestic and in international law. It investigates whether federal states permit separatist claims of their minorities for “internal modifications” on the basis of constitutional Law, such as the formation of new member units or the merger of existing member units, and whether domestic law knows of any secessionist claims for “external modifications,” such as the formation of new sovereign states or the merger or association with existing states. The extensive practice surveyed by the author allows for a new outlook on the well-known problem of “self-determination.”

Constitutional Protection of the Right to Self-Determination

2021 ◽  
pp. 1-21
Author(s):  
Marishet Mohammed Hamza
Keyword(s):  
International Law ◽  
Constitutional Law ◽  
Democratic Republic ◽  
Self Determination ◽  
Comparative Perspective ◽  
Constitutional Protection ◽  
Domestic Legislation ◽  
The Right ◽  
Legal Right

Abstract The right to self-determination is an essential international law principle that holds an erga omnes character. Also, the right is often enshrined under domestic legislation, including constitutions. The 1995 Federal Democratic Republic of Ethiopia Constitution (fdre Constitution) is one such constitution and, uniquely, it explicitly recognizes the right to self-determination including the right of secession as an unconditional right of the nations, nationalities, and peoples in Ethiopia. This paper selects the fdre Constitution and analyses whether such constitutional law frameworks better address some of the contentious matters concerning the right to self-determination under international law. In a comparative perspective (with international law), the article analyses, inter alia, how the fdre Constitution approach the questions of who the subjects of the right to self-determination are, and the substantive guarantees for exercising internal and external aspects of the right to self-determination with particular emphasis on secession as a legal right.

Striking a Balance between Free Association and Regulating Membership of a ‘Community’: Exploring s 235 of the Constitution of South Africa

2021 ◽  
Vol 28 (1) ◽  
pp. 91-116
Author(s):  
Bertus De Villiers
Keyword(s):  
South Africa ◽  
International Law ◽  
Judicial Review ◽  
Constitutional Law ◽  
Free Association ◽  
Self Determination ◽  
Freedom Of Association ◽  
Essential Question ◽  
Universal Standard

Section 235 of the Constitution of South Africa contains a promise of potential self-determination of language and cultural communities. An essential question arising from this promise is how an individual’s freedom of association interacts with the ability of a community to determine its membership. This article reflects on this question with reference to standards developed in international law and practices in the constitutional law of selected case studies. Whereas international law sets a universal standard of free association, states have developed practices whereby the individual’s right to free association is recognised, but where there are also some measures allowed to ensure that an individual is indeed accepted by and part of the community. Any conflicts that arise are, generally speaking, subject to a form of judicial review.

Ambivalent Self-Determination

2021 ◽  
pp. 280-294
Author(s):  
Maria Cahill
Keyword(s):  
International Law ◽  
Constitutional Law ◽  
Self Determination ◽  
International Treaties ◽  
International Treaty ◽  
Atypical Case ◽  
Correct Procedure ◽  
The Eu

This chapter focuses on the interface between international law and Irish constitutionalism. Part I examines how Ireland achieved constitutional self-determination first on the basis of and then in violation of an international treaty. The remainder of the chapter concentrates on the place of international law within the framework provided by the 1937 Constitution. Part II highlights how constitutional law has, in general, required that international treaties may neither displace the content of the Constitution nor curtail the competences of the legislature or the courts; as such, it seeks to preserve self-determination as substantive constitutional integrity. Part III focuses on the atypical case of the EU, for which the concept of self-determination used is consciously ambivalent about substantive constitutional integrity, tolerating significant compromises as long as they are made using the correct procedure: in other words, self-determination is reconceived as procedural constitutional integrity.

Norms of Self-Determination: Thinking Sovereignty Through

2012 ◽  
Vol 4 (2-3) ◽  
pp. 195-224 ◽  
Author(s):  
David Scott
Keyword(s):  
Cold War ◽  
International Relations ◽  
International Law ◽  
Third World ◽  
International Relations Theory ◽  
Democratic Governance ◽  
Self Determination ◽  
Post Cold War ◽  
The Way

This essay is an exploration of the contemporary normative conditions of thinking about the problem of sovereignty. Specifically it is a consideration of some aspects of the way in which the problem of Third World sovereignty has been taken up and argued out in international relations theory and international law on the legal-political terrain of self-determination. The essay traces the transformation of the norm of self-determination as an anti-colonial standard to its post-Cold War re-composition as a norm of democratic governance.

Globalization and a Normative Framework of Freedom

Human Affairs ◽  
2007 ◽  
Vol 17 (1) ◽  
Author(s):  
Ladislav Hohoš
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
Social Order ◽  
Self Determination ◽  
Normative Structure ◽  
New Era ◽  
Normative Framework ◽  
Positive Liberty ◽  
The Way

Globalization and a Normative Framework of FreedomThe author considers the question of whether or even what normative structure of social order is able to encourage the advancement of the measure of positive liberty in the process of globalization. Related to this is the issue of the insufficiency of guarantees provided by orthodox liberalism for human self-determination. The author considers possible scenarios as to the way in which an elite cosmopolitan minority, profiting from globalization and feeling no responsibility for the majority left to its own fate, would pursue its own interests. The ideas of Ralf Dahrendorf concerning the global rule of law in the name of freedom and the need for international law are referred to. Globalization is occurring just as Marx intuitively predicted: capitalism becomes the bearer of hidden immanent self-destructive mechanisms. In conclusion, the author's hypothesis is that the new era of law in the 21

scholarly journals he constitutional law of Iran against the background of the conflict of international and Muslim law of the Islamic State

2021 ◽  
pp. 62-68
Author(s):  
Aleksandr Suprunov ◽  
Ulyana Vasilieva
Keyword(s):  
International Law ◽  
Constitutional Law ◽  
Islamic State ◽  
Islamic Republic ◽  
Legal Provisions ◽  
Domestic Legislation ◽  
Islamic Republic Of Iran ◽  
Legal Position ◽  
Domestic Law

The Constitution and domestic legislation of the Islamic Republic of Iran is distinguished by its specific attitude not only to the norms of Muslim law, but also to the provisions of international law. The Constitution of Iran recognizes the undoubted priority of Muslim law over the norms of not only domestic legislative acts adopted by the Majlis of the country, but also the Constitution of the Islamic Republic of Iran. At the same time, the norms of international law are equated by the Iranian legislator with the norms of domestic law. The legal conflicts between international law and the legal provisions of Muslim law and the Constitution of Iran arising in connection with this legal position of the spiritual and secular authorities of Iran have become the content of this article.

scholarly journals FEDERAL STATE CLAUSE, TERRITORIAL UNITS CLAUSE AND FEDERAL RESERVATION — THE WAYS TO LIMIT INTERNATIONAL TREATY OBLIGATIONS

2016 ◽  
Vol 2 (4) ◽  
pp. 0-0
Author(s):  
Борис Осминин ◽  
Boris Osminin
Keyword(s):  
International Law ◽  
Federal Government ◽  
Federal State ◽  
International Treaties ◽  
International Treaty ◽  
Federal States ◽  
Domestic Law

Federal states may encounter difficulties in applying international treaties on matters constitutionally committed to their constituent units. In such cases a federal state may not be able to join the treaty without some accommodation either by its constituent units or other parties to the treaty. There are certain methods by which these problems can be reduced: federal state clauses, territorial units clauses, and federalism reservations. Some treaties may include a federal state clause to the effect that limits the scope of treaty’s obligations to those that federal state’s government has constitutional authority to assume. Another solution is to include a territorial units clause where the treaty may apply to some of a state’s constituent units but not others. Several federal states have made reservations to limit their obligations to those areas of legislative jurisdiction that the federal government has assumed. On occasion, other states have objected to such reservations. Alternatively, a federal state may issue a federal declaration to explain how federalism affects its implementation of the treaty. Unitary states tend to resist the federal state clause and the territorial units clause because they create an imbalance between rights and obligations of the contracting federal and unitary states. Although such clauses are not popular with unitary states, they do make it that much easier for federations to become parties. Such clauses are a compromise between the interest of unitary and federal states. Domestic law provides no excuse for a failure to fully implement international treaty obligations. In international law, if the constituent units fail to comply, it is the federal government that is liable for the failure to properly implement the treaty.

scholarly journals Zagrożenie życia narodu jako przesłanka wstępna derogacji zobowiązań w dziedzinie praw człowieka

2020 ◽  
pp. 9-41
Author(s):  
Tadeusz Jasudowicz
Keyword(s):  
Human Rights ◽  
International Law ◽  
Constitutional Law ◽  
Self Determination ◽  
Political Rights ◽  
States Of Emergency ◽  
Treaty Monitoring ◽  
Public Emergency ◽  
Civil And Political Rights

To determine the fate of human rights in extreme situations, the treaties contain a mechanism for derogating from obligations, i.e. derogations from their enforceability in such exceptional situations. The initial and fundamental criterion under which derogation steps are admissible is the existence of an exceptional public emergency that threatens the life of the nation, as referred to in Article 4(1) of the International Covenant on Civil and Political Rights and Article 15(1) of the European Charter of Human Rights, and about which Professor Anna Michalska wrote so competently in 1997. Neither the constitutions of modern states nor their practice of introducing states of emergency are helpful in defining this criterion more precisely; most often, they do not use it at all. Unfortunately, it is not to be found in Chapter XI of the Polish Constitution “States of Emergency”, nor in the laws of 2002 regulating these states. In the practice of the treaty monitoring bodies (Human Rights Committee in the ICCPR system; the European Commission and the Court of Human Rights in the ECHR system), we do not find incontestable nor indisputable indications. The concept of the “nation” is referred to society as a whole and is to be associated with its physical survival. In the author’s opinion, this is not the correct approach, as it is and must be about a “living nation”, a nation effectively exercising its rights. The enslavement of a nation, its subjugation, elimination of opportunities for its self-determination – far from its extermination – can unquestionably meet the requirements of the criterion of a threat to the life of the nation. The study of constitutional law (the nation-sovereign) and international law (the principle and right to self-determination of the nation) unequivocally confirms this thesis.

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