Doctrine Of Sovereignty Research Articles

Issues of Virtualization of Political Life and a Virtual State in Modern Legal Studies

Virtualization of power, politics, administration, and the state is a popular terminology that characterizes changes in the socio-political environment in the era of the 4th Industrial Revolution. Information and computer technologies and Internet technologies, digitalization of the society, of the state and law create a special reality, namely: a virtual space where «digital twins» are located and operate, and digital processes reflecting reality and parallel to it take place. New theories related to virtualization of political life can be contrasted with traditional approaches to the political and legal system. The paper examines and developes ideas that counter-balance, to a certain extent, the sovereign national statehood by virtue of either its actual absorption by international political or corporate structures or dissolution among other subjects of the political system (due to the increasing opportunities for civil society institutions to influence the political decision-making process). There is also the opposite danger of turning into an authoritarian state. In any case, modern constitutional values are being questioned. In legal studies, there is no rush to agree with such conclusions. The ideas of networkization and virtualization of relations of power are quite compatible with the classical political and legal doctrines of state sovereignty, democracy and human rights, the rule of law and separation of powers. In turn, these doctrines themselves must undergo certain transformation taking into account new challenges of the digital society.

Corporal Punishment: Law Reform Lessons for Australia from South Africa and New Zealand

This article compares the law reform methods employed by South Africa and New Zealand to eliminate the defence of ‘moderate and reasonable chastisement’ to a charge of common assault, to determine the best possible law reform strategy for Australian jurisdictions, within the context of its federal system of governance. South Africa and New Zealand banned corporal punishment on a national level, with South Africa prohibiting the use of corporal punishment by way of the judicial condemnation of the Constitutional Court in 2019, and New Zealand’s legislation to ban corporal punishment through Parliamentary processes in 2007. Corporal punishment in the home is still legal in Australia if administered by parents or those in loco parentis. This article focuses on the three Australian States that have enacted human rights legislation—Victoria, the Australian Capital Territory (ACT) and Queensland—and the impact of this legislation on judicial law reform. In this regard, the doctrine of parliamentary sovereignty is discussed in terms of its ability to limit public interest litigation’s viability to strike down inconsistent legislation. The article suggests that all three countries can learn from one another concerning the successes and/or failures of law reform. Furthermore, the article concludes by acknowledging that even though formal abolition is the norm in South Africa and New Zealand, corporal punishment remains widespread. Parents and those in loco parentis must be supported by continual education initiatives to bring about requisite social and cultural change.

Parliamentary Sovereignty before and beyond Brexit

Abstract This article assesses the doctrine of parliamentary sovereignty against the background that, at the time of UK’s withdrawal from the EU, UK parliament proclaimed it to be preserved despite the continuing domestic legal effect accorded, under 2018 and 2020 Acts, to pertinent EU law provisions in the UK legal system. The relevant evidence is analysed to show whether that position is one to which English law subscribes.

In the eyes of all mankind: Interests and independence in Vattelian statehood.

Emer de Vattel’s argument that states should be understood as free and independent bodies operating as moral persons in the international sphere is credited with launching a doctrine of sovereignty that hardened national borders against external interference or obligation. It also helped launch one of the world’s first modern states through its influence on the American founding. Vattel’s theory rests upon the critical role of judgment, specifically, the judgment of interests. That doctrine requires that states must always think for themselves, but not only about themselves. Offering some justification for international action, even in the midst of disagreement or war, is what separates civilized from villainous nations for Vattel, and this grounds interests in the communicative habits of an international community. Because the judgment of interests incorporates a communicative element, Vattelian internationalism cannot become exclusively self-regarding, and state interests cannot be entirely contained within national borders. Instead, Vattel’s distinctive combination of independence and interests is set within a global community that makes the fate of outsiders the business of every state.

The Immunity Question before the International Criminal Court: Revisiting African Sovereignty and the Colonial Origins of International Law

This article discusses the contentious issue of Head of State of immunity before the International Criminal Court (ICC) in the context of the historical link between the colonial confrontation of the nineteenth century and the development of the doctrines of state sovereignty and immunity. It examines the philosophical underpinnings of the immunity in international criminal law debate and concludes that a clear understanding of the role that colonialism played in the development of international law is pivotal to understanding the concerns raised by the African Union and individual African leaders regarding the indictment of African leaders by the ICC.

Armstrong's Resource-Egalitarianism Theory and Attachment

The paper analyses the interrelationship between Armstrong’s egalitarian theory and his treatment of the ‘attachment theory’ of resources, which is the dominant rival theory of resources that his theory is pitched against. On Armstrong’s theory, egalitarianism operates as a default position, from which special claims would need to be justified, but he also claims to be able to incorporate 'attachment' into his theory. The general question explored in the paper is the extent to which ‘attachment’ claims can be ‘married’ to an egalitarian theory. The more specific argument is that a properly constrained attachment theory is more plausible than Armstrong’s egalitarian theory. It also criticizes attachment and improvement accounts as justifying permanent sovereignty over resources. The paper argues that neither of those arguments aim to justify the international doctrine of permanent sovereignty.

Political restructuring, bureaucratization and minority groups in Myanmar: The case of Rohingya from 2011 to 2018

Abstract Politics of ethnicity can have serious repercussions if balance of interests is not maintained and this can lead to internal destabilization of states. This is the case in Myanmar, a situation which has brought suffering and deaths of thousands; effectively raising concerns and opprobrium against the government of Myanmar. Minority groups in Myanmar are greatly oppressed, though recent proceedings have seen the democratically elected government trying to avert the situation, while facing great restraints from the military which has been in control of the government for decades. The transformation process to uphold minority rights is marred with controversy as the Rohingya systematic alienation has persisted even in the new political dispensation. Discriminatory, cumbrous bureaucratic tendencies, are constantly used to control and manipulate the Rohingya to force them out of the country, a system which is ultimately backed by state sponsored violence. This research therefore, seeks to critically examine how the bureaucratic systems in Myanmar has been weaponized to systematically suppress rights of the Rohingya. Most research has focused on the butchering and series of violence against the Rohingya but this is generally a condensed and comprehensive analysis of the direct contribution of the bureaucrats as the implementers of public policy. This research concludes that, the doctrine of sovereignty has largely remained the salvation harboring and facilitating the continuity of repressive regimes despite the existence of the doctrine of limited sovereignty. Most importantly, the Rohingyian ordeal hints on the failures of the United Nations as actions of member states are conditioned by their selfish interests and states would only act where their national interest lie. There is need to create a global authority with executive legislative, judiciary, military and constitutional authority to exert authority over governments.

The Never-Chosen: Samson Occom, the New Divinity, and Indigenous Self-Determination

The Never-Chosen: Samson Occom, the New Divinity, and Indigenous Self-Determination

The sovereignty of positivism

ABSTRACT Jeffrey Goldsworthy recently claimed that parliamentary sovereignty itself expresses or endorses legal positivism. This claim inverts the relationship between law and legal theory, according to which legal theories are used to explain doctrinal, functional, institutional, or constitutional aspects of the law. Beyond claiming that positivism as a legal theory can helpfully explain sovereignty as a legal principle, Goldsworthy now argues that the legal doctrine of sovereignty is itself an articulation of positivism as a legal theory. This assertion, if correct, has significant implications for current understandings of the English constitution, constitutional theory, and legal theory. This essay argues that Goldsworthy’s conception of legal positivism cannot accurately describe the English conception of parliamentary sovereignty identified by the English rule of recognition.

The Enigmatic Principle of Complementarity: A Negotiated Machinery for Implementing International Criminal Law

The International Criminal Court (ICC) is the first court of its kind—a permanent international criminal tribunal. It has introduced a new kind of jurisdictional principle, namely the principle of complementarity. However, the idea of a forum exercising jurisdiction over transgressors of rules of international criminal law did not emerge with the ICC and can be traced back to the Nuremberg Tribunal. When the idea to establish a permanent international criminal court came about, it was apparent that the doctrine of state sovereignty and the territoriality principle would be the biggest hurdles that would have to be overcome. Complementarity would prove to be the solution that was agreed upon.

ПОЛІТИКО-ПРАВОВА ДОКТРИНА ДЕРЖАВНОГО СУВЕРЕНІТЕТУ В УМОВАХ ГЛОБАЛІЗАЦІЇ

The article substantiates and analyzes the factors influencing the process of political and legal doctrine of state sovereignty in the context of globalization. As a result of a comprehensive study it was determined that the realization of state sovereignty depends not only on the action of general historical and international political factors, but also on the ability of Ukrainian society to overcome economic difficulties, on the active participation of each member of the territorial community. It was found that the very nature of state sovereignty, the genesis of formation, modernization and development of its concepts are due to globalization and integration processes in the world, and above all, within the European Union.

La doctrina de la soberanía dual en la jurisprudencia de la Corte Suprema de Estados Unidos

Under the dual sovereignty doctrine the Supreme Court has accepted that different sovereigns may prosecute an individual for the same facts without violating the double jeopardy clause if the act of the individual infringed the laws of each sovereignty. This article aims to analyze the evolution of the dual sovereignty doctrine in the case law of the Supreme Court of the United States. Although the doctrine has been highly criticized by scholars, the Supreme Court has persistently upheld it. . Besides, the article addresses the safeguards that currently exist against eventual abuses of the dual sovereignty doctrine, such as the “sham exception” and the “Petite Policy”. Finally, since the previous safeguards have been considered insufficient, the contribution briefly explores the possibility of applying the Eighth Amendment as an additional protection against eventual abuses committed under the dual sovereignty doctrine.

‘Maranga Ake Ai’ The Heroics of Constitutionalising Te Tiriti O Waitangi/The Treaty of Waitangi in Aotearoa New Zealand

In 1840, some of the sovereign nations of Māori signed te Tiriti o Waitangi (the Māori language version of the Treaty of Waitangi) with the British Crown. Hone Heke was the first Māori leader of the northern nation of Ngāpuhi to sign, but by 1844 he was leading a significant revolt against British colonialism in Aotearoa New Zealand by chopping down British flagpoles erected on his lands. While Māori may have initially welcomed the intent of te Tiriti as a means for seeking British help to protect their international borders, the British prioritised the English version of the Treaty which recorded the transfer of sovereignty from Māori to the British. As the British transposed their dominant legal traditions of governance, including bringing to the fore their doctrine of parliamentary supremacy, Māori have been seeking their survival ever since. We extend this by focusing on why the doctrine of parliamentary sovereignty needs to adapt to the Treaty’s promise of bicultural power sharing.

Цифровой суверенитет в условиях глобализации: философский и правовой аспекты

The article features the problem of consolidating and understanding the digital sovereignty of the State and the individual. The author addresses the challenge of establishing a correlation between the idea of digital sovereignty and the global socio-political change. The paper focuses on the effect of modern trends of social development, i.e. accelerated social informatization and globalization, on the development of doctrine of digital sovereignty and its legal design. The author believes that the idea of digital sovereignty is a reaction to the transformation of the global social order, which resulted in new doctrinal provisions and legal norms. They give citizens the right to determine the process of formation, storage, and management of digital data, as well as to ensure their inviolability. The legal formalization of digital sovereignty can indicate either the protection of statehood and personality or, on the contrary, their absorption by structures of the global order. As a result, such categories as "sovereignty, "statehood, or "personality" may eventually lose their actual meaning and real content. The conceptualization of the phenomenon of neurosovereignty and its implementation programs might be the future of the theory and practice of sovereignty.

POLITICAL AND LEGAL DOCTRINE OF STATE SOVEREIGNTY IN THE CONDITIONS OF GLOBALIZATION

The article substantiates and analyzes the factors that influence the process of political and legal doctrine of state sovereignty in the context of globalization. As a result of a comprehensive study, it was determined that the realization of state sovereignty depends not only on the action of general historical and international political factors, but also on the ability of Ukrainian society to overcome economic difficulties, on the active participation of each member of the territorial community. In the context of globalization, the concept of sovereignty, its content and implementation becomes specific. Despite its sovereign nature, state power is still not absolute and is subject to certain restrictions, both internally and externally, but such restrictions cannot be confused with a violation of sovereignty, which is unacceptable. It is determined that in the context of globalization, sovereignty is narrowing: the world community exerts influence, sometimes severe, on countries violating international law, international rules and agreements, and their strong global economic supranational forces also influence the transformation of state sovereignty. Sometimes there is a tendency to voluntarily delegate powers to world, regional and international organizations and associations, ie the internal affairs of the state, in which no one interferes and which are governed only by national law and customs are narrowed by voluntary renunciation of sovereign rights, and international law or the right of a certain community is extended. It was found that the very nature of state sovereignty, the genesis of formation, modification and development of its concept are due to globalization and integration processes in the world, and above all, within the European Union.

Leaving the State of Nature: Polybius on Resentment and the Emergence of Morals and Political Order

Abstract The possibility of cooperation and the stability of political order are long-standing problems. Polybius, well known for his Histories analysing the expansion of Rome and his description of the Roman constitution, also offers an intriguing social and political theory that covers ground from psycho-anthropological micro-foundations to institution-based political order, providing a genealogy of morals and political order that is best understood in game-theoretical terms. In this paper I try to give such an interpretation. Polybius’ naturalistic, proto-game theoretical views show similarities with Hume, Smith and especially Hobbes’ doctrine of sovereignty by acquisition. However, Polybius is original in crucial regards, giving a motivationally plausible account of institutional and especially constitutional solutions to moral and political problems. Constitutional order, for Polybius, embodies and makes possible in the first place a kind of political reason that cannot be had individually. Polybian political theory thus offers interesting solutions to problems concerning moral motivation, collective action, and the conditions for political order, as well as the explanation and character of institutions.

From Crusades to Colonization: Violence in Secular and Religious Political Theory

This paper examines the transition in political philosophy between the medieval and early-modern periods by focusing on the emergence of sovereignty doctrine. Scholars such as Charles Taylor and John Rawls have focused on the ability of modern-states to overcome conflicts between different religious confessionals. In contrast, this paper seeks to examine some of the peace-promoting features of Latin-Christendom and some of the conflict-promoting features of modern-secular states. The Christian universalism of the medieval period is contrasted with the colonial ventures promoted by the Peace of Westphalia. This paper’s goal is not to argue that secularism is in fact more violent than religion. Rather, it seeks to demonstrate the major role that religion played in early modern philosophy and the development of sovereignty doctrine. It argues against the view that the modern, secular state is capable of neutrality vis-à-vis religion, and also combats the view that the secular nature of modern international law means that it is neutral to the different beliefs and values of the world’s peoples. These observations emphasize the ways in which state power and legitimacy are at the heart of the secular turn in political philosophy.

Jousting Over Jurisdiction: Sovereignty and International Law in Late Nineteenth-Century South Asia

The article examines the relationship between colonialism and international law by focusing on late nineteenth century debates surrounding the sovereignty of the “princely states” of colonial South Asia. The princely states were ruled by indigenous rulers and were not considered to be British territory, but remained subject to British “influence;” as a result, there were numerous controversies over their legal status. During the course of jurisdictional disputes, a variety of interested players - British politicians, colonial officials, international lawyers, rulers and advisors of princely states - engaged in debates over the idea of sovereignty to resolve questions of legal status, the extent of rights and powers, and to construct a political order that supported their interests and aspirations. I focus on legal texts written by British international lawyers and colonial officials as well as material relating to two jurisdictional disputes (one between the state of Travancore and the British Government and another between the state of Baroda and the British Government) to trace two versions of sovereignty that were articulated in late nineteenth century South Asia - unitary and divisible. In doing so, I argue that international law, and the doctrine of sovereignty in particular, became the shared language for participants to debate political problems and a key forum for the negotiation of political power.

From Crusades to Colonization: Violence in Secular and Religious Political Theory

This paper examines the transition in political philosophy between the medieval and early-modern periods by focusing on the emergence of sovereignty doctrine. Scholars such as Charles Taylor and John Rawls have focused on the ability of modern-states to overcome conflicts between different religious confessionals. In contrast, this paper seeks to examine some of the peace-promoting features of Latin-Christendom and some of the conflict-promoting features of modern-secular states. The Christian universalism of the medieval period is contrasted with the colonial ventures promoted by the Peace of Westphalia. This paper’s goal is not to argue that secularism is in fact more violent than religion. Rather, it seeks to demonstrate the major role that religion played in early modern philosophy and the development of sovereignty doctrine. It argues against the view that the modern, secular state is capable of neutrality vis-à-vis religion, and also combats the view that the secular nature of modern international law means that it is neutral to the different beliefs and values of the world’s peoples. These observations emphasize the ways in which state power and legitimacy are at the heart of the secular turn in political philosophy.

INTERROGATION OF FORENSIC EXPERT AS METHOD FOR RELIABILITY AND JUSTIFICATION ASSUSMENT OF CONCLUSION OF EXAMINATION

The purpose of the article is to research the nature of the law-making activity of the state using the achievements of modern domestic legal science in the question of rethinking the nature and nature of the right on the basis of the doctrine of popular sovereignty, a clarified understanding of the sources of the right, a deeper explanation of the nature of its relations with society and the state, disclosure and its true role in the formation and operation of the right. The systemic, analytical, comparative-historical, formal-legal methods of research of legal phenomena are used. It is stated that the legalistic understanding of the essence of the right-making, the law-making and the rulemaking activity as a specific activity of specially authorized bodies for establishing, amending or abolishing legal norms in the form of adoption of normative-legal acts or as a form of government activity state bodies, their legal entities prevails today, local governments, or other entities. These views do not take into account the deep, essential aspects of the nature of the right, the process of its formation, and therefore distort the role of the state in the process of the right-making. Which, accordingly, influences the understanding of the requirements to the rulemaking activity of public authorities, not allowing to justify, develop and introduce proper mechanisms of control over these activities by the public, to affirm the rule of law in the activity of public authorities, to optimize the rulemaking procedures, to protect human rights. The result of the study is an attempt to formulate the basic, initial provisions of the doctrine of the nature and nature of the rulemaking activity of the state, which would be based on a crystallized understanding of the essence of the right and the law, their correct relationship, and accordingly the understanding of the relationship between the right-making and the law-making, clarifying the nature and nature of the process of the law-making. This approach gives the possibility of theoretical and legal understanding and further improvement of the legal foundations of the Ukrainian state and national legislation, legislative activity of the parliament, the rulemaking activity of public authorities.