The Sovereignty of the State and the Problem of International Law

Sovereignty ◽  
2019 ◽  
pp. 140-158
Author(s):  
Hermann Heller
Keyword(s):  
Decision Making ◽  
International Law ◽  
The State ◽  
Sovereign State ◽  
Essential Requirement ◽  
World State ◽  
Starting Point ◽  
The World ◽  
Decision Making Units

This chapter argues that any study of international law that does not take the existence of a plurality of sovereign units of will as its starting point is doomed to fail from the start. International law exists only as long as there are at least two universal and effective territorial decision-making units. The sovereign state is a necessary part of juristic thought but international law is not. The “world state” and the state that isolates itself behind a Chinese wall would exist as sovereign decision-making units even without international law; international law without sovereign states, however, is a conceptual impossibility. The chapter shows that the sovereignty of the state is not an obstacle to international law, but an essential requirement for it.

scholarly journals The Role of Russia in the International Anti-terrorism Cooperation

2016 ◽  
pp. 43-51
Author(s):  
A A Uraniyan
Keyword(s):  
Decision Making ◽  
International Law ◽  
The State ◽  
Decision Making Process ◽  
Foreseeable Future ◽  
The World

This article examines the role of Russia in the international anti-terrorism cooperation. The author analyzes Russian anti-terrorist activities since the war in Chechnya in 1990s till nowadays. The article notes that the state performs regularly with useful profile initiatives on the world arena and operates within the framework of the international law in the decision making process and during the operations. Particular attention is paid to the events that occurred in 2015, when Russia began a struggle against terrorism in Syria, becoming the only state that carries out anti-terrorist actions according to the official handling of the legitimate president of Syria: the author evaluates the data of events and makes forecast on the development of the situation in the foreseeable future.

Leviathan on a Leash

2020 ◽  
Author(s):  
Sean Fleming
Keyword(s):  
International Relations ◽  
Political Thought ◽  
Sovereign Debt ◽  
New Technologies ◽  
Thomas Hobbes ◽  
The State ◽  
State Responsibility ◽  
Modern Politics ◽  
Starting Point ◽  
The World

States are commonly blamed for wars, called on to apologize, held liable for debts and reparations, bound by treaties, and punished with sanctions. But what does it mean to hold a state responsible as opposed to a government, a nation, or an individual leader? Under what circumstances should we assign responsibility to states rather than individuals? This book demystifies the phenomenon of state responsibility and explains why it is a challenging yet indispensable part of modern politics. Taking Thomas Hobbes' theory of the state as a starting point, the book presents a theory of state responsibility that sheds new light on sovereign debt, historical reparations, treaty obligations, and economic sanctions. Along the way, it overturns longstanding interpretations of Hobbes' political thought, explores how new technologies will alter the practice of state responsibility as we know it, and develops new accounts of political authority, representation, and legitimacy. The book argues that Hobbes' idea of the state offers a far richer and more realistic conception of state responsibility than the theories prevalent today and demonstrates that Hobbes' Leviathan is much more than an anthropomorphic “artificial man.” The book is essential reading for political theorists, scholars of international relations, international lawyers, and philosophers. It recovers a forgotten understanding of state personality in Hobbes' thought and shows how to apply it to the world of imperfect states in which we live.

Between the utopian imaginaries of literature and international law: The question of the insurgent child in international legal discourse and Kris Montañez’s Youth

2021 ◽  
pp. 1-20
Author(s):  
José Duke S. Bagulaya
Keyword(s):  
Civil War ◽  
International Law ◽  
Legal Discourse ◽  
The State ◽  
The Other ◽  
State Of Exception ◽  
Utopian Vision ◽  
The World ◽  
Realistic Representation ◽  
The One

Abstract This article argues that international law and the literature of civil war, specifically the narratives from the Philippine communist insurgency, present two visions of the child. On the one hand, international law constructs a child that is individual and vulnerable, a victim of violence trapped between the contending parties. Hence, the child is a person who needs to be insulated from the brutality of the civil war. On the other hand, the article reads Filipino writer Kris Montañez’s stories as revolutionary tales that present a rational child, a literary resolution of the dilemmas of a minor’s participation in the world’s longest-running communist insurgency. Indeed, the short narratives collected in Kabanbanuagan (Youth) reveal a tension between a minor’s right to resist in the context of the people’s war and the juridical right to be insulated from the violence. As their youthful bodies are thrown into the world of the state of exception, violence forces children to make the choice of active participation in the hostilities by symbolically and literally assuming the roles played by their elders in the narrative. The article concludes that while this narrative resolution appears to offer a realistic representation and closure, what it proffers is actually a utopian vision that is in tension with international law’s own utopian vision of children. Thus, international law and the stories of youth in Kabanbanuagan provide a powerful critique of each other’s utopian visions.

scholarly journals Heuristics, biases and traps in managerial decision making

2013 ◽  
Vol 61 (7) ◽  
pp. 2117-2122
Author(s):  
Peter Gál ◽  
Miloš Mrva ◽  
Matej Meško
Keyword(s):  
Decision Making ◽  
Systematic Errors ◽  
Small Samples ◽  
Evidence Based ◽  
Managerial Decision ◽  
Initial Information ◽  
Representativeness Heuristic ◽  
Starting Point ◽  
The World ◽  
The Impact

The aim of the paper is to demonstrate the impact of heuristics, biases and psychological traps on the decision making. Heuristics are unconscious routines people use to cope with the complexity inherent in most decision situations. They serve as mental shortcuts that help people to simplify and structure the information encountered in the world. These heuristics could be quite useful in some situations, while in others they can lead to severe and systematic errors, based on significant deviations from the fundamental principles of statistics, probability and sound judgment. This paper focuses on illustrating the existence of the anchoring, availability, and representativeness heuristics, originally described by Tversky & Kahneman in the early 1970’s. The anchoring heuristic is a tendency to focus on the initial information, estimate or perception (even random or irrelevant number) as a starting point. People tend to give disproportionate weight to the initial information they receive. The availability heuristic explains why highly imaginable or vivid information have a disproportionate effect on people’s decisions. The representativeness heuristic causes that people rely on highly specific scenarios, ignore base rates, draw conclusions based on small samples and neglect scope. Mentioned phenomena are illustrated and supported by evidence based on the statistical analysis of the results of a questionnaire.

The Developmental State

2019 ◽  
pp. 71-100
Author(s):  
Luis Eslava
Keyword(s):  
Twentieth Century ◽  
International Law ◽  
Developmental State ◽  
The State ◽  
The South ◽  
Post Colonial ◽  
Institutional Formation ◽  
Complex Process ◽  
Starting Point ◽  
The Impact

The battle for international law during the era of decolonization in the mid-twentieth century was to a large extent a battle fought over the nature, function and objectives of the state—above all, over their relationship to the idea of ‘development’. A particular normative and institutional formation resulted from this battle: the ‘developmental state’, the impact of which on (in)dependence in the South was and continues to be profound. However, the ‘developmental state’ did not spring ready-made out of nowhere. On the contrary, using Latin America’s much earlier experience of colonialism, decolonization and independent statehood as a starting-point, this chapter draws attention to the long and complex process through which the developmental state’s most important elements emerged, defining what was thinkable and doable there and elsewhere in the post-colonial world.

Act of State Doctrine

2020 ◽  
Author(s):  
Alfonso Iglesias
Keyword(s):  
International Law ◽  
Separation Of Powers ◽  
General Rule ◽  
Executive Branch ◽  
The State ◽  
The Political ◽  
Sovereign State ◽  
National Courts ◽  
Foreign State ◽  
Political Question

According to the act of state doctrine, national courts must refrain from prosecuting the validity of official acts carried out by a foreign state within its own territory, except if it commits violations of international norms with broad consensus of international society, such as, for example, a case of genocide. Both its judicial self-restraint character and its reflection in the judicial deference to the executive branch would justify the ex officio application of the act of state doctrine by the courts. This doctrine is neither a rule nor a legal obligation required by international law, although it arises from the relevance of the international rule of territorial sovereignty of the state. It was not introduced by a constitutional or legislative provision, but is a common law principle developed mainly by Anglo-Saxon jurisdictions on the basis of considerations of international comity, respect for the principles of sovereign equality and non-intervention in the internal affairs of other states, separation of powers, and the choice of law freedom. To some extent, the legal basis of the doctrine of immunity for acts of state was analogous to the basis of immunity granted to the foreign sovereign state and its agents. The underlying rationale of this doctrine consists in preventing domestic courts from issuing adverse judgments against foreign governments that could embarrass international relations and interfere with the conduct of foreign affairs by the executive branch power. The doctrine of the act of state (and that of the political question) has important differences with the immunity of the foreign state: (1) This immunity is per se a general rule of public international law of a customary nature accepted and applied universally—in addition to being regulated in various international conventions, one of them of universal vocation—unlike the doctrines cited, which are not regulated by national legislations or by international codification efforts. (2) The moment of operation is also different, since the immunity of the foreign state functions ex ante as a procedural exception to the exercise of jurisdiction by the court of the territorial state (or court of the forum), which for that reason is obliged to recognize its lack of competence to try the case before it, while the doctrines of the state act and the political question act later—only if the defendant does not enjoy immunity—when the court is already exercising its competence and knowing the merits of the case. (3) The application of the immunity of the foreign state requires that the foreign state be sued before the courts of the forum, whereas the act of state doctrine does not require that the foreign state itself be a party to the proceedings, but it is sufficient to question the validity of an internal act of the foreign state during the judicial proceedings.

The Plurality of States and the World Order of Reason

2017 ◽  
Author(s):  
Sergio Dellavalle
Keyword(s):  
International Law ◽  
Social Order ◽  
World Order ◽  
The State ◽  
New Paradigm ◽  
The World ◽  
The Way

This chapter argues that Hegel can be regarded as the philosopher who was the first to pave the way to a new paradigm of order and, thus, also to a new idea of the relation between the state and international law. Hegel would not only conceive order as a ‘system’—which emerges clearly from the investigation of the deep connection between his interpretation of international law and relations and the broader context of his philosophy—but this ‘system’ would also be something new within the horizon of the patterns of social order. Indeed, two elements of a new paradigm are at least sketched in Hegel’s philosophy: the polyarchic setting of order, and its dialectic (or maybe even communicative) understanding.

Is a Peace Treaty with Germany Legally Possible and Politically Desirable?

1947 ◽  
Vol 41 (6) ◽  
pp. 1188-1193 ◽  
Author(s):  
Hans Kelsen
Keyword(s):  
Soviet Union ◽  
International Law ◽  
The United States ◽  
Essential Elements ◽  
National Government ◽  
The State ◽  
Peace Treaty ◽  
Sovereign State ◽  
The Soviet Union ◽  
Mutual Relations

By its complete defeat, the surrender of its armed force, and the abolishment of its national government, Germany has ceased to exist as a sovereign state and subject of international law. By the Declaration of Berlin, June 5, 1945, the four Powers occupying the country—the United States of America, the United Kingdom, the Soviet Union, and the French Republic—assumed “supreme authority with respect to Germany including all powers possessed by the German Government, the High Command, and any state, municipal, or local government or authority.” This meant that the four occupant Powers have assumed sovereignty over the former German territory and its population, though the term “sovereignty” was not used in the text of the Declaration. The four occupant Powers exercise their joint sovereignty through the Control Council, established at Berlin as the legitimate successor of the last national government of Germany. All this is in complete conformity with general international law, which authorizes a victorious state, after so-called debellatio of its opponent, to establish its own sovereignty over the territory and population of the subjugated state. Debellatio implies automatic termination of the state of war. Hence, a peace treaty with Germany is legally not possible. For a peace treaty presupposes the continued existence of the opponent belligerents as subjects of international law and a legal state of war in their mutual relations.The opposite doctrine, advocated by some authorities and governments, that Germany, in spite of the fact that there exists no independent national government, not even a “government in exile,” still exists as a sovereign state, that the four occupant Powers are not the sovereigns in relation to the German territory and its population, that they only exercise Germany's sovereignty just as a warden exercises the rights of his ward, is manifestly based on a legal fiction. According to international law, a community is a state if, and as long as, a certain population is living on a definite territory under an independent government. If one of these three essential elements of a state in the sense of international law is missing, the state as a subject of international law disappears, or, in other words, the community ceases to exist as a sovereign state. No state can exercise the sovereignty of another state. State sovereignty does not permit representation or substitution.

scholarly journals Ordre du droit et droit de l'ordre

2005 ◽  
Vol 28 (3) ◽  
pp. 699-729
Author(s):  
Jacques Zylberberg
Keyword(s):  
Human Rights ◽  
United Nations ◽  
International Law ◽  
Rule Of Law ◽  
International Organizations ◽  
The State ◽  
Political Rights ◽  
Sovereign State ◽  
The Rule Of Law ◽  
Civil And Political Rights

This essay undertakes a review of national and international law to demonstrate that law is mainly an ideological and variable instrument of the State and of the United Nations, which is a by-product of the states. In this perspective, the author opposes the pragmatical ideology of resistance against the sovereign state to the juridical legitimation and the behaviour of the States who reluctantly have conceded some civil and political rights. Those rights are endangered by the growing bureaucratization of the state, the inflation of the juridical norms and rules, in addition to the permanent repressive characters of the State. The criticism of the contradiction and the variation of the rule of law when it relates to "human rights" is also extended to international law as well as to the international organizations.

scholarly journals PENEGAKAN HUKUM TERHADAP ZONA LARANGAN TERBANG BAGI PESAWAT SIPIL ASING DI INDONESIA

2019 ◽  
Vol 2 (2) ◽  
pp. 123-134
Author(s):  
Silmiwati Silmiwati
Keyword(s):  
International Law ◽  
Air Force ◽  
No Reduction ◽  
The State ◽  
Chicago Convention ◽  
Sovereign State ◽  
Article 9 ◽  
Paris Convention ◽  
Naval Base ◽  
State Territory

The sovereignty is the highest authority owned by the state. In the sovereignty decided contained matter relating with the power and responsibility for the state territory. The state have a responsibility to own territory and that state has the power to be competent for apply the no-fly zone. Indonesian state is the sovereign state, therefore with the implementation of no-fly zone meant that no reduction in the sovereignty of Indonesian state. The results showed that no-fly zone was regulated in International Law on Paris Convention 1919 Article 3 and 4, and Chicago Convention 1944 Article 9. The National Law, no-fly zone was regulated on Article 7 Legislation Number 1 of 2009 about Aviation. Indonesia has setting the rule of no-fly zone in the region WAP7 Surabaya Naval Base and WAP23 Balikpapan Flare. Indonesia Air Force has working to maintain the sovereignty of Indonesia.

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