The principle of subsidiarity as a constitutional principle in international law

2013 ◽  
Vol 2 (1) ◽  
pp. 37-62 ◽  
Author(s):  
ANDREAS FOLLESDAL
Keyword(s):  
International Law ◽  
The State ◽  
Legal Order ◽  
State Sovereignty ◽  
Public International Law ◽  
Constitutional Principle ◽  
The Us ◽  
State Compliance ◽  
State Consent

AbstractThis paper explores subsidiarity as a constitutional principle in international law. Some authors have appealed to a principle of subsidiarity in order to defend the legitimacy of several striking features of international law, such as the centrality of state consent, the leeway in assessing state compliance and weak sanctions in its absence. The article presents such defences of state-centric aspects of international law by appeals to subsidiarity, and finds them wanting. Different interpretations of subsidiarity have strikingly different institutional implications regarding the objectives of the polity, the domain and role of subunits, and the allocation of authority to apply the principle of subsidiarity itself. Five different interpretations are explored, drawn from Althusius, the US federalists, Pope Leo XIII, and others. One upshot is that the principle of subsidiarity cannot provide normative legitimacy to the state-centric aspects of current international law on its own. It stands in need of substantial interpretation. The versions of subsidiarity that match current practices of public international law are questionable. Many crucial aspects of our legal order must be reconsidered – in particular the standing and scope of state sovereignty.

The Diminishing Acts of the State. Or, Is It?

2012 ◽  
pp. 687-717
Author(s):  
Francis N. Botchway
Keyword(s):  
International Economic ◽  
International Law ◽  
The State ◽  
Police Powers ◽  
Economic Law ◽  
Role Of The State ◽  
International Economic Law ◽  
The Us

The Act of state doctrine essentially serves to truncate or end proceedings against a state in the court of another state for actions attributed to or owned by the first state. Originally, the actions against which the defense could be raised were wide and all encompassing. It included exercise of police powers, takings, maritime and commercial acts. However, starting with cases such as Bernstein, Dunhill and others, and goaded in part by legislation such as the second Hickenlooper Amendment in the US, a number of exceptions have been carved into the doctrine. It is such that some academics have called for the end of the doctrine. This paper argues that although the doctrine is now limited, compared to its original compass, it is resilient. That resilience, this paper contends, is predicated on its International law pedigree. It is further argued that the swings in the role of the state in economic matters accounts for the growth, downturn and upturn in the viability of the doctrine as a defense in international economic law.

Book I Diplomacy in General, 4 The State: Its Concept as a Legal Person in International Law

2016 ◽  
Author(s):  
Fox Hazel
Keyword(s):  
International Law ◽  
International Community ◽  
The State ◽  
International Organization ◽  
Legal Person ◽  
International Affairs ◽  
Public International Law ◽  
Role Of The State

This chapter addresses the State as the prime actor in the conduct of diplomacy and examines the State’s status as a legal person as defined by international law. To understand the role of the State in international affairs, it is essential to appreciate that it is both a maker and a subject of international law. It has been and continues to be instrumental in the formation of public international law. The chapter thus presents four topics to explain the nature and scope of the powers and activities of the State in international affairs. These are: the qualifications for statehood, recognition of the State as a member of the international community, the State compared to an international organization as a legal person and other entities having lesser rights in international law, and sovereignty as an attribute of the State.

The Nomadic Sense of Law in an International Constitutionalism

2019 ◽  
Vol 22 (1) ◽  
pp. 234-283
Author(s):  
William E. Conklin
Keyword(s):  
International Law ◽  
The State ◽  
Legal Order ◽  
Public International Law ◽  
The Social ◽  
International Legal Order ◽  
History Of ◽  
Nomadic Communities ◽  
Legal Space ◽  
International Constitutionalism

This article examines the place of Nomadic peoples in an international constitutionalism. The article claims that an important element of a Nomadic culture is its sense of law. Such a sense of law differs from a constitutionalism which has privileged fundamental principles aimed to constrain acts of the executive arm of the State. Such a constitutionalism is shared by many contemporary domestic legal orders. Public international law also takes such a constitutionalism for granted. In the focus upon rules to constrain the executive arm of the State, the sense of law in Nomadic communities has slipped through arguments which the jurist might consider inclusive of the protection of such communities. This problem is nested in a legacy which has weighted down the history of European legal thought. The article initially identifies three forms of nomadism. The social phenomenon of nomadism has been the object of juristic commentary since the Greeks and Romans. The image of Nomadic peoples in such a legacy has imagined Nomadic peoples as lawless although the article argues that a sense of law has existed in such communities. Such a sense of law contradicts a State-centric international legal order. Public international law has reserved a special legal space relating to Nomadic peoples. The article identifies four arguments which might be rendered to protect Nomadic peoples in such a State-centric international community. Problems are raised with each such argument

scholarly journals The Ramifications of Reservations to Human Rights Treaties

2020 ◽  
Vol 8 (1) ◽  
pp. 150-165
Author(s):  
Lara Mullins
Keyword(s):  
Human Rights ◽  
International Law ◽  
The United States ◽  
The State ◽  
State Sovereignty ◽  
Political Climate ◽  
European Court ◽  
Human Rights Treaties ◽  
Conservative Values

This paper discusses the legal ramifications of reservations to multilateral human rights treaties. It examines the approach of the International Court of Justice (ICJ), compared to that of the European Court of Human Rights (ECtHR), in light of the general practice in international law relating to reservations and the International Law Commission’s commentary. The paper then discusses the scope for change and growth, given the nature of the two different approaches. Once it has set out the current law it describes the role of the evolving moral, social and political climate in society and the effect that it has on the conversation around human rights and treaty reservations. It answers three main questions around reservations: first, whether reservations are allowed; second, the conditions under which they are allowed; and third, if reservations are not allowed, whether the invalid reservation cancels a party’s membership of the treaty. Having answered these three questions, the paper draws to the conclusion that, ultimately, for international law to continue to be effective, state sovereignty must be given the utmost respect and importance in relation to reservations. With the current polarisation of the political climate, as is evidenced by the traditionally liberal states’ leaning towards conservative values, as in Britain and the United States, a push by the ECtHR to sever reservations from treaties and still bind the state will only alienate key players from the international stage. At face value, one may be inclined to think that the stringent protection of human rights values and limiting the reservations to such values is beneficial but, in reality, this would make participation in the international framework unappealing to states as their sovereignty would be infringed. Therefore, the ICJ’s approach is advantageous as it understands the role of reservations in achieving participation and it also understands the state practice element. Thus, in line with the ILC commentary and the ICJ’s judgements, the ECtHR’s recent rulings will not become the international law norm and state sovereignty with respect to reservations will continue to prevail.

The Role of Geo-location Technologies

2017 ◽  
Author(s):  
Dan Jerker B. Svantesson
Keyword(s):  
International Law ◽  
Law Reform ◽  
Private International Law ◽  
Current Effect ◽  
Public International Law ◽  
The Road ◽  
On The Road

This chapter explores the role geo-location technologies may play on the road towards achieving jurisdictional interoperability. The relevant technologies involved are introduced briefly, their accuracy examined, and an overview is provided of their use, including the increasingly common use of so-called geo-blocking. Attention is then given to perceived and real concerns stemming from the use of geo-location technologies and how these technologies impact international law, territoriality, and sovereignty, as well as to the role these technologies may play in law reform. The point is made that the current ‘effect-focused’ rules in both private international law and public international law (as those disciplines are traditionally defined), are likely to continue to work as an incentive for the use of geo-location technologies.

Understanding the Functions of Jurisdictional Law

2017 ◽  
Author(s):  
Dan Jerker B. Svantesson
Keyword(s):  
International Law ◽  
Legal Theory ◽  
Legal Philosophy ◽  
Law Reform ◽  
The Internet ◽  
Private International Law ◽  
Public International Law ◽  
Important Concept ◽  
Definition Of

This chapter takes us into the domain of legal theory and legal philosophy as it places the questions of Internet jurisdiction in a broader theoretical, and indeed philosophical, context. Indeed, it goes as far as to (1) present a definition of what is law, (2) discuss what are the law’s tools, and (3) to describe the roles of law. In addition, it provides distinctions important for how we understand the role of jurisdictional rules both in private international law and in public international law as traditionally defined. Furthermore, it adds law reform tools by introducing and discussing the concept of ‘market sovereignty’ based on ‘market destroying measures’––an important concept for solving the Internet jurisdiction puzzle.

Legitimacy

2019 ◽  
Keyword(s):  
International Law ◽  
The State ◽  
State Sovereignty ◽  
International Courts ◽  
The Rule Of Law ◽  
State Legitimacy ◽  
The Relationship ◽  
Supranational Institutions

This collection brings together scholars of jurisprudence and political theory to probe the question of ‘legitimacy’. It offers discussions that interrogate the nature of legitimacy, how legitimacy is intertwined with notions of statehood, and how legitimacy reaches beyond the state into supranational institutions and international law. Chapter I considers benefit-based, merit-based, and will-based theories of state legitimacy. Chapter II examines the relationship between expertise and legitimate political authority. Chapter III attempts to make sense of John Rawls’s account of legitimacy in his later work. Chapter IV observes that state sovereignty persists, since no alternative is available, and that the success of the assortment of international organizations that challenge state sovereignty depends on their ability to attract loyalty. Chapter V argues that, to be complete, an account of a state’s legitimacy must evaluate not only its powers and its institutions, but also its officials. Chapter VI covers the rule of law and state legitimacy. Chapter VII considers the legitimation of the nation state in a post-national world. Chapter VIII contends that legitimacy beyond the state should be understood as a subject-conferred attribute of specific norms that generates no more than a duty to respect those norms. Chapter IX is a reply to critics of attempts to ground the legitimacy of suprastate institutions in constitutionalism. Chapter X examines Joseph Raz’s perfectionist liberalism. Chapter XI attempts to bring some order to debates about the legitimacy of international courts.

Law and contestation in international negotiations

2020 ◽  
Vol 46 (5) ◽  
pp. 672-690
Author(s):  
Kyle Rapp
Keyword(s):  
Discourse Analysis ◽  
International Relations ◽  
International Law ◽  
International Criminal Court ◽  
International Criminal ◽  
Criminal Court ◽  
International Negotiations ◽  
The Us ◽  
Legal Grounds

AbstractWhat is the role of rhetoric and argumentation in international relations? Some argue that it is little more than ‘cheap talk’, while others say that it may play a role in persuasion or coordination. However, why states deploy certain arguments, and why these arguments succeed or fail, is less well understood. I argue that, in international negotiations, certain types of legal frames are particularly useful for creating winning arguments. When a state bases its arguments on constitutive legal claims, opponents are more likely to become trapped by the law: unable to develop sustainable rebuttals or advance their preferred policy. To evaluate this theory, I apply qualitative discourse analysis to the US arguments on the crime of aggression at the Kampala Review Conference of the International Criminal Court – where the US advanced numerous arguments intended to reshape the crime to align with US interests. The analysis supports the theoretical propositions – arguments framed on codified legal grounds had greater success, while arguments framed on more political grounds were less sustainable, failing to achieve the desired outcomes. These findings further develop our understanding of the use of international law in rhetoric, argumentation, and negotiation.

Migration, Poverty, the Role of State, (International) Law and Development in the Industrialised Countries of Europe

2021 ◽  
Vol 0 (0) ◽  
Author(s):  
Brian-Vincent Ikejiaku
Keyword(s):  
Middle East ◽  
International Law ◽  
Developed Countries ◽  
The State ◽  
Border Security ◽  
Law And Development ◽  
Poor Countries ◽  
Role Of The State ◽  
Industrialised Countries

Abstract The current radical strategies by which there is, on one hand, an increasing European assistance to developing poor countries of Africa/Middle East and on the other hand, tightened border-security within Europe as a means to reduce migration from the South; may worsen the state of poverty in Europe, particularly on the immigrants and impact on the workforce in Europe with implication on development. Though, these strategies may sound radically appealing, they are however, unlikely to reduce migration flows to Europe. While there is still a “wide development gap” between the poor countries of Africa/Middle East and industrialised countries of Europe, migration will often increase, at least in the next two-three decades. Radical border security in Europe will expose the migrants to human trafficking in different form and manifestation contrary to Article 3 UN Protocol on Trafficking in Person. The paper examines the role of the State and Law and development, in addressing the issues of poverty and migration within the industrialised countries of Europe. The research argues that there is the likelihood that poverty and human right issues will increase in Europe in the near-future, if the State/EU fails to play their role, by changing their policy direction and repositioning themselves by improving their Law and development stance. The research employs the human rights-based approach, interdisciplinary and critical-analytical perspective within the framework of international Law and development. It employs qualitative empirical evidence from developed countries of Europe and poor developing countries for analysis.

scholarly journals State Sovereignty of the Russian Federation in View of Amendments to the Constitution of the Russian Federation Adopted in 2020

2020 ◽  
Vol 11 ◽  
pp. 21-23
Author(s):  
Aleksey L. Bredikhin ◽  
◽  
Evgeniy D. Protsenko ◽  
Keyword(s):  
Russian Federation ◽  
Political System ◽  
The State ◽  
State Sovereignty ◽  
The World ◽  
The Russian Federation

In this article, the authors analyze the amendments to the Constitution of the Russian Federation, adopted in 2020, with a view to their influence on the state of Russian sovereignty and note that the topic of sovereignty is central to these amendments. Researchers conclude that the amendments constitute, first and foremost, the strengthening of the sovereignty of the Russian Federation, the autonomy of state jurisdiction, and the increasing status and role of Russia in the world political system.

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