Doctrine Of Sovereignty Research Articles

The theory of democratic integration

The outcome of the 2024 European Parliament elections highlights the need for the EU to underpin its functioning as a European democracy with a proper political theory. This article introduces the theory of democratic integration as a political philosophy of the EU. It aims to provide the EU with a philosophical foundation by analysing its evolution as a deviation from the Westphalian system of international relations and its doctrine of absolute sovereignty. The article finds that the EU is succeeding in creating a new democratic home for its citizens and its member states. In times of increasing support for parties which promote national sovereignty as the recipe for the future and which consequently call for the dismantling of the European Parliament and the deconstruction of EU democracy, the theory will empower the Union to defend its constitutional achievements and prevent it from backsliding into an undemocratic organisation of illiberal states.

THE OBSTACLES TO THE RIGHT TO A FAIR TRIAL UNDER THE INTERNATIONAL LAW: A CASE STUDY OF AL-ANFAL AND SREBRENICA GENOCIDE TRIALS

Background: The right to a fair trial is a critical part of national and international human rights frameworks. To protect this right, the rule of law should be implemented. Currently, the approach to trying individuals accused of grave international crimes, including genocide, is different, which gives an impression of inequality. For instance, the person accused of the al- Anfal genocide was tried by a national court and sentenced to the death penalty, whereas the person accused of the Srebrenica genocide was sentenced to life imprisonment by an international tribunal. Not to mention the lack of respect for the defendants’ rights during the al-Anfal genocide’s trial, including the principle of due process and the right to a fair trial. The main reason for the differing decisions in these two identical cases involving genocide arises from their trials in different courts and under different legal frameworks. This paper addresses the significance of these challenges for equality under international law and emphasises the difficulties in securing fair trials by examining these examples. Methods: This article analyses the application of the right to a fair trial for international criminals by using doctrinal methods. Specifically, it adopts a qualitative approach to examine relevant international statutes. To illustrate, the research chose to analyse and compare two case studies: the trial of Ali al-Majid, the leader of the al-Anfal genocide, and Ratko Mladic, the leader of the Srebrenica genocide. This comparison focuses on aspects such as judicial independence and overall fairness in the trials of war criminals. It involves desk-based research and data that are collected through the analysis of relevant literature from primary sources, such as international law instruments and secondary sources, including books and academic articles, about the inconsistency of fair trial standards in different judicial contexts. Results and conclusions: Different approaches in trials for similar crimes threaten global justice and the protection of individual rights and freedoms. One practical way to address this issue is to bring those accused of grave international crimes, including genocide, to appear before the International Criminal Court (ICC), providing fair trials and punishments. However, this article demonstrates that the doctrine of state sovereignty may pose challenges to creating a uniform framework for the prosecution of war criminals. Additional challenges arise with the existence of different legal and political systems across the world. The article argues that to ensure a fair trial and maintain international peace and security, it is necessary to overcome these challenges and adopt a uniform framework for the prosecution of those accused of grave international crimes. The ICC can be the solution. The international community can overcome these challenges by encouraging all countries to join the Rome Statue and give it the sole jurisdiction over grave international crimes such as genocide, war crimes, or crimes against humanity.

Государственный суверенитет в координатах судебной власти: суверенна ли судебная власть?

The article presents the author's concept of judicial sovereignty, which is based on an analysis of the constitutional characteristics of the sovereign principles of the judiciary, which include: the increased, special nature of the legitimacy of the judiciary; the unity of the judicial system of the Russian Federation, ensuring the unity of judicial sovereignty; the independence of the court; the jurisdictional universalism of the court, ensured by the exercise of judicial power in various constitutional forms of legal proceedings, by combining universalization with differentiation; judicial and jurisdictional discretion, including the possibilities of judicial law-making and the formation of judicial law. In this regard, the concept of judicial sovereignty is being implemented both in law enforcement, judicial and jurisdictional activities, and in judicial rulemaking. At the same time, the role of the judiciary in the development of the modern doctrine of state sovereignty is analyzed, bearing in mind, first of all, the decisions of the Constitutional Court of the Russian Federation as the conceptual basis of national judicial jurisprudence, which is of particular relevance in modern conditions of the global crisis of international relations and the need to strengthen the sovereignty of Russia in all forms of its manifestation.

Гармонизация федерального и регионального законодательства в России и проблемы государственного суверенитета

The article singles out stages in the development of Russian laws that are closely related to the establishment and elaboration of the contemporary national state sovereignty doctrine and Russian federalism.

Machiavelli Against Sovereignty: Emergency Powers and the Decemvirate

This article argues that Machiavelli’s chapters on the Decemvirate ( D 1.35, 1.40-45) advance an internal critique of the juridical discourse of sovereignty. I first contextualize these chapters in relation to several of Machiavelli’s potential sources, including Livy’s Ab urbe condita, Dionysius of Halicarnassus’s Roman Antiquities, and the antiquarian writings of Andrea Fiocchi and Giulio Pomponio Leto. I then analyze Machiavelli’s claim that the decemvirs held “absolute authority” ( autorità assoluta)—an authority that was unconstrained by either laws or countervailing magistrates. I proceed to argue that Machiavelli’s account of the decemvirs’ election contains a web of allusions to the lex regia, the “royal law” by which the Roman people were thought to have conveyed their sovereign power to an emperor. By modeling the decemvirs’ election on the lex regia, Machiavelli reveals the political limitations of the doctrine of popular sovereignty; moreover, he illustrates that even free and fair elections can easily give rise to tyranny.

Sovereignty and the Persistence of the Aesthetic

British constitutional thought tends to understand sovereignty in legalistic terms, with the concept often equated with the doctrine of parliamentary sovereignty. As Loughlin and Tierney have recently argued, this approach obscures the political considerations which undergird the legal precept. In this article we argue that this approach misses a third, and essentially important, dimension to sovereignty. Law, politics and aesthetics all play equally important parts in constituting the essential structure of the concept. We elaborate this claim through a reading of some prominent accounts of sovereignty within the history of political modernity. At bottom, aesthetics is concerned with the ways in which the body's senses are stimulated and ordered; it therefore includes pictorial representation, ideation and imagination, as well as affect, instinct and habituated feeling. We argue that these different elements are usefully understood as all pertaining to a distinctive, and persistent, aesthetic dimension which is essential to the sovereignty concept.

THE POLICY OF BANNING THE EXPORT OF RAW MATERIALS IN THE MINING SECTOR BY THE INDONESIAN GOVERNMENT FROM THE PERSPECTIVE OF INTERNATIONAL TRADE LAW

<p><em>The management and utilization of natural resources by a country are manifestations of exercising national sovereignty. The Doctrine of Sovereignty is designed to provide equality among nations under the law to develop their countries towards prosperity and well-being. The policy of restricting and prohibiting the export of raw materials in the mining sector, such as nickel, gold, and tin, by the Indonesian government, is recognized under international law, particularly international trade law. This policy will bring beneficial impacts to Indonesia's economy. By having the capability to process natural resources independently, Indonesia can enhance its economic self-reliance, reduce dependency on imports, and improve the country's position in the global competition in the mining sector, ultimately leading to increased national revenue and providing greater well-being for the entire Indonesian population.</em><em></em></p>

Constructing Kurdish Statehood in Northern Iraq: The Primacy of Traditional Statecraft over International Law

ABSTRACT: This paper analyses the long-running debate between the oft-opposed international legal/political doctrines of self-determination (maintained by the Kurds) and territorial integrity (advocated by Iraq, Turkey, Iran, and Syria) to conclude that the latter trumps the former. The author examines international legal practice regarding the UN, the Helsinki Final Act of 1975, various ICJ decisions regarding former Yugoslavia and Africa, the international legal doctrines of sovereignty, succession and uti possidetis, among others, to reach this conclusion. However, there is nothing in international law that prohibits successful secession as the cases of Eritrea and Kosovo, among others, illustrate. Nevertheless, either the secession must be won in war or accepted peacefully by the original mother state. Neither has occurred in the case of the Kurds. Remedial secession and internal self-determination also offer more flexible interpretations of the applicability of self-determination, but do not constitute international law or detract in any way from the conclusion that territorial integrity takes precedence over self-determination. Thus, international law only plays a secondary role in attempts to solve the Kurdish predicament. Traditional power politics remains the primary solution to the Kurdish predicament. However, by successfully building rudimentary state institutions, the KRG has managed to stake a claim to autonomy and even nascent statehood.

The Dance of Legislation: Why Parliamentary Sovereignty is not a Meaningful Public Law Metric

"The dance of legislation" is a metaphor to capture the parliamentary–judicial dynamic in the creation, interpretation and application of legislation. Contrary to the edicts of classical sovereignty doctrine, Parliament is not the sole actor in (what I term) "law creation through legislation". Sovereignty doctrine champions the exclusivity of Parliament in enacting legislative text and discounts any constitutive role of the courts in bringing meaning to the legislative text. The courts deploy interpretive techniques that fix legal meaning in accordance with a range of institutional norms and understandings. These techniques debunk the notion that Parliament's word is the start and end point of what is law, irrespective of what the courts say is the law. The judicial role extends beyond filling gaps in statutory meanings: it extends even to the reconstruction of statutory meaning where institutional norms commend activist interpretive method. The symbiosis that joins the branches lies at the heart of the legislative enterprise. The parliamentary–judicial relationship is an interdependent, collaborative one that draws upon the distinctive, role-specific function of each branch. The quip "it takes two to tango" speaks perfectly to the dance of legislation imagined in this article.

The Philosophy of International Aviation Law

“International Air Law” has been justifiably arrested in a straight-jacketed approach centred on the classical doctrines of state sovereignty and sources, which is in addition to a limiting classicism in IAL’s discourses, methods, and meanings. This Article problematizes the said classicism on account of it distancing, and often dissociating, IAL from the global realities in civil aviation. It proposes an alternative approach to read IAL including rechristening it as “International Aviation Law,”, a new epistemological and disciplinary category, which has a modernist approach, and which stays close to the reality of functions in civil aviation. In making a case for IAvL, the Article primarily draws on many renewalist and radical thinking in international law and elsewhere mindful of the prevailing global and economic realities. Motivated by the same, the Article lets orthodoxies to fall for making ground for an epistemological revolution in the regulation of civil aviation. The Article organizes its critique and construction under four major heads: Sovereignty, Sources, Subjects, and Meanings.

FOREIGN PÓLICY OF POST-REVOLUTIONARY IRAN: EXPEDIENCY AT THE CROSSROAD OF SUPRA-NATIONALISM AND SOVEREIGNTY

Following the Iranian Revolution of 1979 and the subsequent formation of the Islamic Republic, the Islamization of Iran’s foreign policy has arguably become the newly established state’s primary agenda on the international arena. In accordance with Islamic thoughts on international relations, the Islamic Republic’s foreign policy was constructed on the concept of Islamic supra-nationalism - which places its emphasis on the unity of the global Muslim community (Ummah). Arguably, this supra-nationalist doctrine is incompatible with the current political world order which is based on the concept of the Westphalian nation-state. This incompatibility exists on three levels; firstly, Islam places its emphasis on ideological boundaries rather than political borders and therefore rejects the idea of nationalist states. Secondly, Islam denies current sources of legitimacy with regard to international laws and regulations, and finally, Islam calls for the elimination of cultural, ethnic and geographical boundaries among Muslims in order to unite Muslim communities in a new power bloc within the current political world order. This paper firstly identifies the differences between Islamic supra-nationalism and the doctrine of Westphalian sovereignty. Secondly, by emphasizing on the concept of maslahat (expediency) and by using several examples; this paper also provides explanations on how the foreign policy of Iran decides which path to take at the crossroad of supra-nationalism and sovereignty.

Parliament's Constitution: Legislative Disruption of Implied Repeal.

UK constitutional law establishes priority rules governing the relations among legal sources. According to the implied repeal rule, a later statute is preferred to and repeals an earlier statute where the two cannot stand together. There is a vast literature testing the rule's application in future-facing scenarios: whether Parliament in enacting legislation is capable of legally binding its successors. This article instead adopts a backward-facing perspective, focusing on past enactments. I examine Parliament's legislative power to disrupt how implied repeal applies to earlier, inconsistent statutes. This sheds light on Parliament's capacity to shape the constitution's architecture-here, by rearranging priority relations among existing statutes. I juxtapose the technique against the doctrine of constitutional statutes, and also address the implications for the doctrine of parliamentary sovereignty. Nor is the technique simply of academic interest. A backward-facing reprioritising regime has already been established in the legislation governing UK withdrawal from the EU. Lastly, the argument may be generalised to encompass other legislatures that also enjoy powers to disrupt the implied repeal rule normally operating among past statutes.

"ДЕЦИЗИОНИЗМ ТАМ, ГДЕ ОТСУТСТВУЕТ ЛЕГАЛЬНОСТЬ": ОБ ОДНОМ ИЗ ТИПОВ ЮРИДИЧЕСКОГО МЫШЛЕНИЯ В ПОЛИТИКО-ПРАВОВОМ УЧЕНИИ КАРЛА ШМИТТА

The author of the article attempts to analyze the doctrine of decisionism, presented in Carl Schmitt’s work “On the three types of juridical thinking” (1934). In it, the German political philosopher and lawyer (1888– 1985) sums up some scientific results related to the very concept of decisionism and the corresponding decisionist thinking, having focused his very first treatise “Dictatorship” to that topic. “From the origins of the modern idea of sovereignty to the proletarian class struggle” (1910), and subsequently – the work “Political Theology. Four chapters on the doctrine of sovereignty” (1922). Among the three types of legal thinking considered by Schmitt (normativism, decisionism, thinking in categories of a concrete order), the greatest relevance belongs to decisionism, since it is in it that Schmitt sees the main means of combating abstract, faceless, anonymous and extra-spatial legal normativism, the consolidation of which in Germany contributed to both the reception Roman law, as well as the political and legal teachings of a number of normative legal scholars, the central place among whom was occupied by the Austrian lawyer G. Kelsen (1881–1973) with his theory of “pure” (abstract) law. The main factor that supports Schmitt’s research interest in decisionalism is its multiplicity (expressed in at least three of its subtypes: political, judicial, and autocratic). That feature of decisionalism suggests its relationship to the other two types of thinking considered in the “Three Types” (normative thinking and thinking in the categories of a specific order). In the first section of the article (“On three types of juridical thinking” by K. Schmitt. The decision to declare a state of emergency as the main feature of the sovereign), its author offers his commentary on Schmitt’s review of all three types of legal thinking, focusing his and the reader’s attention on the main thesis of decisionism (“He who makes an emergency decision is a sovereign”), on the distinction between normativism and decisionism and on the dependent nature of the latter on thinking in categories of a specific order. Particular attention in the article is paid to the issue of decisionism in American and English law (the second section “On the issue of the relationship between normativism and decisionism within the framework of case law”), since American law is partially built on judicial precedents, and therefore decisions of judges, and in English law Schmitt sees certain features of decisionism as the basis for the manifestation of thinking in categories of a specific order. The third section of the article (“Critical remarks regarding Schmitt’s political and legal doctrine of decisionism”) is focused on the consideration of at least two goals that Schmitt pursues by critically analyzing the doctrine of decisionism: the first (close) is to justify the feasibility of replacing normativism with decisionism; the second (prospective) is to prove the need to make existential decisions in case of emergency situations. In the process of analysis, Schmitt ignores the obvious fact that decisions of such a kind, not supported by the norms of law, contribute to the lawlessness of authorities acting as the sovereign.

The foreign policy strategy of Russia towards the Baltic states is the implementation of the “new doctrine of limited sovereignty”

The foreign policy strategy of Russia towards the Baltic states is the implementation of the “new doctrine of limited sovereignty”

Sweden, Inc.: Temporal Sovereignty of the Realm and People from the Middle Ages to Modernity

Sweden, Inc.: Temporal Sovereignty of the Realm and People from the Middle Ages to Modernity

Ripening time? The Welsh Labour government between Brexit and parliamentary sovereignty

The Welsh Labour government occupies a unique position in UK territorial politics, favouring neither the status quo nor independence for Wales while advocating a new settlement for the whole state. This article provides a detailed examination of its policy, focusing on its position on the doctrine of parliamentary sovereignty. Drawing from a range of documentary sources, we analyse the Welsh government’s constitutional proposals and its decision-making in the wake of the 2016 referendum on European Union membership. We argue that Welsh policy is defined by ambiguity. While it advances an alternative constitutional vision, it refrains from rejecting Westminster’s sovereignty outright. In the aftermath of the referendum, it sought to accommodate that sovereignty with its own constitutional claims through enhanced intergovernmental collaboration. In light of the Johnson administration’s centralising reforms, the strategy appears to have failed. Caught in the fractious politics of the Union, Welsh constitutional policy now faces an uncertain future.

Regaining Sovereignty? Brexit and the UK Parliament

The flexible formula of the British Constitution results in a relative openness to external influences. Notwithstanding this fact, the United Kingdom’s (UK’s) membership in the European Union’s (EU’s) structures (1973–2020) resulted in a progressive limitation of the doctrine of parliamentary sovereignty. Brexit will not reverse the effects of the ‘soft’ modification of the foundations of the UK’s system, which occurred in the sphere of the practical implementation of the competencies of the branches of governance. Prima facie, the decision on the UK’s withdrawal from the EU should result in a ‘renaissance’ of the traditional doctrine of Westminster sovereignty, per A.V. Dicey. However, judicial activism, continued validity of the European Convention on Human Rights (incorporated on the basis of Human Rights Act 1998) and the irreversible consequences of the devolution of competencies in the UK for Wales, Scotland and Northern Ireland are the factors that hinder the possible revitalisation of the sovereignty of the British Parliament.

The influence of the doctrine of state sovereignty on the regulation of interethnic relations in the Russian Federation

The influence of the doctrine of state sovereignty on the regulation of interethnic relations in the Russian Federation

The Idea of the Historicism in the Logos of Law

In 2019 in Moscow and in 2021 in London, a monograph was published by famous Russian scholars S. I. Zakhartseva, D. V. Maslennikov and V. P. Salnikov: Logos of Law: Parmenides — Hegel — Dostoevsky. On the Speculative and Logical Foundations of the Metaphysics of Law. This article analyzes the idea of historical law in the Logos, which is being developed by the authors of the monograph. In essence, they pose a problem that clearly goes beyond the ongoing discussion for a long period of sovereignty. The authors, interpreting Hegel’s historicism in law in the context of the entire historical and philosophical tradition from Parmenides to Dostoevsky, offer a new look at the idea of the historical in the doctrine of law, state and sovereignty and make an attempt to develop a sovereign Russian philosophy of law. In their numerous publications over recent years, Zakhartsev, Maslennikov and Salnikov see the theoretical and methodological foundation for the development of a sovereign Russian philosophy of law. In parallel, Zakhartsev and Salnikov develop the foundations of their original concept of the comprehensive theory of law, which is an attempt to synthesize the constructive content of various theoretical systems that describe legal phenomena.

The popular sovereignty of Indigenous peoples: a challenge in multi-people states

ABSTRACT The doctrine of popular sovereignty holds that the ‘supreme authority of the state’ belongs to the people, not to the political institutions exercising public power. What are the implications of this view when there is more than one people in the territory of that state? The case of Indigenous peoples highlights this question, as they are unequivocally peoples who are distinct from the majority population. This paper subjects to criticism of the received view according to which the inclusion of Indigenous peoples in democratic institutions is sufficient for the realization of their popular sovereignty. Instead, we argue that their constituent power must be recognized – the power to create and negotiate the constitutional order. The realization of popular sovereignty in settler states thus necessitates a process where the constitutional order is negotiated by Indigenous peoples and the majority population in conditions where the two parties are mutually recognized as sovereign.