Sir Hersch Lauterpacht’s Idea of State Sovereignty ‐ Is It Still Alive?

2011 ◽  
Vol 13 (1-2) ◽  
pp. 23-41
Author(s):  
Roman Kwiecień
Keyword(s):  
Cognitive Function ◽  
International Law ◽  
Legal Positivism ◽  
State Sovereignty ◽  
State Responsibility ◽  
Human Beings ◽  
Crucial Aspect ◽  
Leading Role ◽  
Bundle Of Rights ◽  
Freedom Of Action

AbstractThis article explores Lauterpacht’s understanding of state sovereignty and its importance today. To this end, it presents intellectual roots of Lauterpacht’s legal thought that is both negative inspiration of his teaching (legal positivism) and the leading role in his work of Grotian and Victorian tradition embodying ideas of natural law, liberalism and progress, supported by Kelsen’s epistemology. Lauterpacht rejects legal positivism, which underlines a freedom of action of states, and, consequently, dependence of international law on state sovereignty. What he deems as relevant is the inverse dependence ‐ sovereignty stems from international law. The idea of sovereignty performs an important cognitive function by indicating the absence of legal interdependencies between states. Sovereignty is not an absolute, rigid category, but a bundle of rights conferred on states by international law. Such a nominalist approach to sovereignty is today noteworthy all the more because it counters mythology of state and its sovereignty. Yet, the more crucial aspect of Lauterpacht’s idea of sovereignty concerns the position of individuals. His view that human beings should be treated as ultimate subjects of law and that sovereignty means not only rights but also state responsibility is today strongly supported in academia and by some political initiatives.

scholarly journals Moral agents and legal persons: the ethics and the law of state responsibility

2017 ◽  
Vol 9 (3) ◽  
pp. 466-489 ◽  
Author(s):  
Sean Fleming
Keyword(s):  
International Law ◽  
Political Theory ◽  
Moral Agency ◽  
State Responsibility ◽  
Human Beings ◽  
Functional Theory ◽  
Moral Agents ◽  
Corporate Moral Agency ◽  
The Law

Why, if at all, does it make sense to assign some responsibilities to states rather than to individuals? There are two contemporary answers. According to the agential theory, states can be held responsible because they are moral agents, much like human beings. According to the functional theory, states can be held responsible because they are legal persons that act vicariously through individuals, much like principals who act through agents. The two theories of state responsibility belong to parallel traditions of scholarship that have never been clearly distinguished. While the agential theory is dominant in IR, political theory, and philosophy, the functional theory prevails in International Law. The purpose of this article is to bridge the gulf between ethical and legal approaches to state responsibility. I argue that IR scholars and political theorists have much to gain from the functional theory. First, it provides a plausible alternative to the agential theory that avoids common objections to corporate moral agency. Second, the functional theory helps us to understand features of International Law that have puzzled IR scholars and political theorists, such as the fact that states are not held criminally responsible. I suggest that states can be ‘moral principals’ instead of moral agents.

scholarly journals The Protection of Foreigners in International Law

2021 ◽  
Vol 2 (1) ◽  
pp. 18-24
Author(s):  
Ferry Eka Rachman
Keyword(s):  
International Law ◽  
Legal Protection ◽  
State Sovereignty ◽  
State Responsibility ◽  
Citizenship Status ◽  
Sovereign State ◽  
Legal Principles ◽  
Legal Provisions ◽  
International Court ◽  
Main Basis

This research aims to find out legal protection against foreigners and citizens who lives outside their nationality country. In discussing the issue of international legal protection against foreigners, a doctrinal approach and international court practice is used. From the opinion of international legal experts, it will be found legal principles and theories regarding the position of individuals as subjects of international law. The principles of citizenship are the main basis for the application of the principle of jurisdiction and country responsibility towards its citizens and foreigners.The results are, In principle, every country will be responsible for providing legal protection to every citizen of the country wherever he/she is and foreigners will receive legal protection, under certain limitations, both from the country where he/she is temporarily located and from the country of origin. Thus, a person's citizenship status is closely related to the protection of international law that will be given to him/her, against him/her, his/her property and family. The application of the principle of state responsibility against citizens abroad or foreigners is based more on the principle of state sovereignty. A sovereign state will apply its national laws to its citizens within its territorial boundaries. Apart from that what applies is legal provisions of other countries or provisions of international law.

Individual Human Rights v. State Sovereignty: The Case of Peru's Withdrawal from the Contentious Jurisdiction of the Inter-American Court of Human Rights

2000 ◽  
Vol 13 (4) ◽  
pp. 985-996 ◽  
Author(s):  
Monica Feria Tinta
Keyword(s):  
Human Rights ◽  
International Law ◽  
State Sovereignty ◽  
Vienna Convention ◽  
Human Rights Law ◽  
General Rules ◽  
Treaty Law ◽  
The Law ◽  
Freedom Of Action ◽  
Individual Human

Human rights law is often regarded as a discipline with aspirations of being an autonomous, self-contained regime within the general corpus of international law. Recent debates concerning reservations in the area of treaty law have reinforced views which claim the governing prinicples of human rights law depart – if not contradict – general rules of international law. By examining a landmark decision of the Inter-American Court of Human Rights which declared the recent purported Peruvian withdrawal from its compulsory jurisdiction invalid, against the background of general international law, the author aims to demonstrate that far from deviating from the general rules of the Vienna Convention of the Law of Treaties, this decision supports the view that human rights law is neither insulated from general international law nor divorced from the principle of sovereignty. For the principle of sovereignty has a twofold character: it is the fundament but also the limit of freedom of action by a state.

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.

Common Interests of Humankind and the International Regulation of the Use of Force

2018 ◽  
Author(s):  
Enzo Cannizzaro
Keyword(s):  
International Law ◽  
Use Of Force ◽  
State Responsibility ◽  
International Regulation ◽  
Philosophical Foundations ◽  
Un Security Council ◽  
Common Interests ◽  
The Law ◽  
Mere Existence ◽  
Further Development

The chapter discusses the philosophical foundations of the current regulation of the use of force. The chapter argues that, in correspondence with the emergence of a sphere of substantive rules protecting common interests of humankind, international law is also gradually developing a system of protection against egregious breaches of these interests. This conclusion is reached through an analysis of the law and practice governing the action of the UN Security Council as well as the law of state responsibility concerning individual and collective reactions to serious breaches of common interests. This system is based on positive obligations imposed upon individual states as well as UN organs, and it appears to be still rudimentary and inefficient. However, the chapter suggests that the mere existence of this system, these shortcomings notwithstanding, has the effect of promoting the further development of the law in search for more appropriate mechanisms of protection.

On the Artifactual—and Natural— Character of Legal Institutions

2018 ◽  
Author(s):  
Corrado Roversi
Keyword(s):  
Natural Law ◽  
Common Ground ◽  
Legal Positivism ◽  
Legal Institutions ◽  
Human Beings ◽  
Legal Realism ◽  
Natural Law Theory ◽  
The Law ◽  
Theory Of Law

Are legal institutions artifacts? If artifacts are conceived as entities whose existence depends on human beings, then yes, legal institutions are, of course, artifacts. But an artifact theory of law makes a stronger claim, namely, that there is actually an explanatory gain to be had by investigating legal institutions as artifacts, or through the features of ordinary artifacts. This is the proposition explored in this chapter: that while this understanding of legal institutions makes it possible to find common ground between legal positivism and legal realism, it does not capture all of the insights offered by these two traditions. An artifact theory of law can therefore be necessary in explaining the law, but it will not suffice to that end. This chapter also posits that legal artifacts bear a relevant connection to certain conceptions of nature, thus vindicating one of the original insights behind natural law theory.

Perspectives canadiennes de droit international public et privé relatives à la maîtrise du territoire

1991 ◽  
Vol 28 ◽  
pp. 29-116
Author(s):  
Gerald Goldstein
Keyword(s):  
International Law ◽  
Free Trade Agreement ◽  
Trade Agreement ◽  
State Sovereignty ◽  
Effective Control ◽  
Territorial Disputes ◽  
Real Property ◽  
Full Account ◽  
Global Policy ◽  
Droit International

SummaryState sovereignty manifests itself through all the powers a state exercises over its territory: it is one of the basic components of sovereignty according to international law. Sovereign power involves controlling territory with a degree of efficiency sufficient to prove the existence of the state. But according to some, state sovereignty has now become less and less a matter of territorial control, and international law is now witnessing an erosion of the significance of territory. While the author admits the plausibility of this opinion when applied to states belonging to closely linked economic unions as the EEC, he challenges this statement when applied to Canada, even given the framework of the U.S.-Canada Free Trade Agreement. In Part I, this article gives a full account of the Canadian positions dealing with legally valid acquisition of territories through effective control and other means. It points out how Canada has been coherently committed to protect its territorial sovereignty in all the border and territorial disputes in which it was and is still involved. It explores how this country deliberately also committed itself to effectively controlling its vast terrestrial, aerial, and maritime territories.From this perspective, the author exposes in Part II the rather protective Canadian legal attitude when dealing with private international interests in Canada: how foreign investors are selectively allowed to own, control, possess, or otherwise acquire an interest in any part of Canadian land or real property through specific substantial rules or conflict of law rules; how Canadian federal and provincial laws deal with expropriating foreign-owned property or with foreign judgments affecting the same. In the view of the author, all these territorialist features strongly convey the idea that Canada still attributes a prime role to securing close control over its territory within its global policy of sovereignty and independence.

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