Principle Of State Sovereignty Research Articles

Grenzüberschreitende Umweltrisiken und internationale Konsultations- und Kooperationspflichten

Many nuclear power plants are located near international borders. For several years, the construction of a new nuclear power plant near the border with Belarus has been discussed in Lithuania. Based on a retrospective on the discussions about the construction of the Temelin nuclear power plant in the Czech Republic, near the border with Austria, this article considers the question of which cooperation obligations are incumbent on the installing States with regard to the neighboring country. Here, the text first addresses the question whether the establishment of nuclear power plants near international borders is permissible under international law at all. While there is a lack of state practice, which would be necessary for the development of a rule of customary international law rule to this effect, the principle of state sovereignty, which is laid down in the Charter of the United Nations, could preclude the construction of nuclear power plants near the border because the establishment of the power plant would require the neighboring state to take precautionary measures for potential accidents in the power plant across the border.An intrusion into the sovereignty of the neighboring state, which is incompatible with international law, can already exist if a serious danger for the neighboring state is created, even if this danger has not (yet) been turned into a concrete damage. Due to the serious extent of the potential damages, the normal operation of a nuclear power plant already amounts to an ultra-hazardous activity, which can lead to a liability which requires neither the illegality of the damaging act, nor a culpable action on the part of the causing state.The current customary international law already gives the neighboring State a right to be consulted by the constructing State. On the basis of consultations between the Czech Republic and Austria, it will be shown which requirements such consultations must meet. In addition, Lithuania’s obligations under the Espoo Convention will be touched upon shortly.

STATE SOVEREIGNTY AND THE INTERNATIONAL LAW OF HUMAN RIGHTS

Promoting human rights at an international level implies state cooperation forestablishing agreements concerning the improvement of measures which are imposed in thisfield, as well as adopting certain conventions related to the new dimensions of rights or evenwith the new human rights.Human rights represent an extraordinarily complex branch of law, which embodiesboth internal order as well as international order, defining and adding up a set of rights,liberties and obligations of people- some against the other, of the states to defend andpromote these rights, of the entire international community to survey the observance of thoserights and liberties in each country – which permits the intervention by means of publicinternational law in those situations in which these right would have normally been breachedin a certain state. Thus, the principle of state sovereignty may not be opposed to the necessityof protecting human rights, in order to justify to the international community the infringementof these rights inside states

Implementing Action against Trafficking of Human Beings under the TFEU: A Preliminary Analysis

This article examines the extent to which the European Union and its Member States have been able to implement so-called 3P obligations (prosecution, protection and prevention) in relation to trafficking of human beings under the Treaty on the Functioning of the European Union (TFEU), with particular reference to the new EU Directive adopted in 2011. A detailed analysis of relevant provisions will be presented in comparison with its predecessor, the Framework Decision on Human Trafficking 2002, adopted under the TEU. The main conclusion reached is that, although a number of improvements have been made to fulfil 3P obligations, a wide margin of discretion, the principle of State sovereignty as well as other issues such as enlargement and restrictive immigration policies might prevent the EU and its Member States from advancing effective action against this crime.

The Shrinking Scope of the Concept of Domestic Jurisdiction in Contemporary International Law

The concept of domestic jurisdiction under international is an off-shoot of the principle of state sovereignty. It signifies an area of internal state authority that is beyond the reach of international law. This paper examines the concept of domestic jurisdiction in contemporary international law with a view to ascertaining its scope. The paper argues that as international law extends its coverage to more subject and issues; the domain of domestic jurisdiction shrinks.

Chinese NGOs and Global Health Governance: From the Perspective of International Law

Since China adheres to the government-led mode at home and Westphalian principle of state sovereignty abroad, Chinese NGOs play an auxiliary and limited role in global health governance. With the process of global civil society movement, and its internal governance reform, China is increasingly propelled by post-Westphalia international law to accept passively or advance actively its NGOs' participation in global health governance, among which GONGOs play a larger role than grassroots NGOs. In fact, Chinese NGOs have made huge progress in urging the government to implement international law on public health. We can see the beginning of how Chinese NGOs are learning to participate in international lawmaking and dispute settlement on public health.

Up in the Air: Aviation, the EU Emissions Trading Scheme and the Question of Jurisdiction

AbstractFrom 1 January 2012, all flights departing from or arriving at the European Union are covered by the EU Emissions Trading Scheme (EU ETS). Amendments were made to Directive 2003/87/EC by Directive 2008/101/EC with the objective of reducing climate change impacts attributable to aviation, but also in order to avoid distortions of competition. The scheme now includes all airlines, including those from third countries, and accounts for emissions that occur partly outside the airspace of EU Member States. A large number of third countries claim that the extension of the Emissions Trading Scheme to legs of flights outside EU territory violates the principle of state sovereignty and deny the jurisdiction of the EU to regulate emissions that occur beyond its borders. So far, the validity of the EU regulation has been challenged by a claim brought by US and Canadian air carriers. They contended that, in adopting the Directive, the EU infringed principles of customary international law—in particular the principle of state sovereignty and the prohibition of extraterritorial application—as well as various international agreements. On 21 December 2011, the Court of Justice of the European Union ruled that the inclusion of emissions from aviation in the EU ETS is valid. In response, Chinese and Indian carriers threatened not to pay the charge, while US airlines pledged to consider other options. This chapter analyses the judgment of the Court and the opinion of Advocate General Kokott in this case. Particular attention is given to the question of extraterritorial jurisdiction and the understanding of state sovereignty in the context of global climate change mitigation. The chapter argues that the Court missed an opportunity to contribute to the clarification of the law on jurisdiction and to the development of climate law.

Legality of the European Union flight ban towards Indonesian airlines

One of the most fundamental principles in the field of air law is the principle of State sovereignty over its airspace. Under the principle, States are responsible for the safety oversight within their territories. However, this principle received specific limitations in certain areas. The States are committed to observe the international regulations governing air navigation, as a consequence, the rights of governments to regulate air navigation above their territories are not absolute, but subject to international rules. The European Commission took the initiative in 2004 to reorganise the European airspace by launching the Single European Sky (SES) Programme. To improve aviation safety in Europe, the European Commission decided to ban airlines found to be unsafe from operating in European airspace. By reason that Indonesian airlines did not meet aviation safety standards, EU imposed a flight ban to all Indonesian airlines. This paper argues that EU flight ban is a unilateral act that violates the principle and objectives of the Chicago Convention 1944.

The challenges of preventive diplomacy : the United Nations' post-Cold War experiences in Africa

The United Nations Organisation (UN) is best endowed to conduct preventive diplomacy (PD) by preventing disputes and conflicts arising from interstate and intrastate relationships. The UN has the means to prevent such conflicts and disputes from emerging and escalating into armed confrontation. This article examines the challenges faced by the United Nations as it practises PD with specific reference to Africa. The Charter of the UN sets out the legal basis of PD for the UN, and for regional and sub-regional organisations. Contributions of four UN Secretary-Generals on matters of PD are examined, and special note is taken of the way in which the current Secretary-General, Mr. Ban Ki-moon, uses a four-pronged approach to matters of PD in Africa. The UN has performed well in PD in Africa, especially in collaboration with sub-regional organisations. While the UN derives its mandate to conduct PD from Articles in its Charter, its options are limited to peaceful settlement of disputes, and its action is restricted by rules of international law on intervention, especially with regard to the prohibition of the use of force. The UN is challenged by its inherent problems such as its structures, and its lack of early warning systems and finances. Challenges arising from the principle of state sovereignty also limit the UN in preventing internal problems, especially at the pre-conflict stages. This article concludes by proposing that strengthening the Secretary-General’s good offices, enhancing conflict early warning systems and encouraging the international community to work together could give legitimacy to UN preventive diplomacy endeavours. Fundamentally, the realisation that violent political problems require political solutions is instrumental in order for the UN to play its PD role.

The role of customary international law in the World Trade Organisation (WTO) disputes settlement mechanism

Over the years, the WTO jurisprudence has been witnessing manifold increase in the influence of international law. This research looks into the relationship between the customary international law, and the WTO disputes settlement mechanism. The research examines the principle of state sovereignty under customary international law, where all states are equal and have the autonomy to exercise their power over both its territory and the people living in that territory. It also looks into the jurisprudence of the non-intervention principle under customary international law, which is derived from the rule of pacta sunt servanda. Thus, this research tests the principle of sovereignty and non-intervention in relation to economic coercion and the doctrine of necessity within the context of trade liberalisation under the WTO agreement. The research also examines whether a unilateral measure of trade barriers under Articles XX(b) and XX(g) is covered under the scope of necessity in order to ensure consistency with the principle of customary international law. Finally, it evaluates the legitimacy of the decisions made by WTO and examines case law involving environmental exception.

Human rights and the rightless: the case of Gaza refugees in Jordan

Sixty years since their displacement, millions of Palestinians continue to share the condition of a stateless people deprived of their basic human rights. Today, over four million registered refugees live beyond historic Palestine and nearly two million remain within ‘temporary’ refugee camps throughout the Middle East. This paper examines the impact of statelessness upon the human rights of Gaza refugees in Jordan. My analysis concerns the lived experience of rightlessness and the human rights discourse of Palestinian activists and the National Centre for Human Rights in Jordan. Gaza refugees have few options but to articulate their demands for human rights in terms of the right to Jordanian nationality. Their human rights work thus consists of asserting their domestic legal right to Jordanian nationality at the expense of their universal human rights. Jordan's primary human rights organization advocates on the Gazans’ behalf by translating their concerns into the international language of human rights claims. In the process, however, the centre subordinates Gazans’ universal human rights to the principle of state sovereignty. This paper suggests that protecting the universal rights of stateless people must address the limitations inherent within the logic of nationality as the practical basis of human rights.

Human Security and Sovereignty: Polar Opposites or Simply Nodes in a Network?

What are the implications from the emergence of the concept of human security to states’ sovereignty? Does the universal protection of human rights necessarily imply violation or weakening of states’ sovereign power in international relations? This paper aims at investigating the main claims about the interplay between an expanding concept of human security and the traditional principle of state sovereignty. Methodologically, it incorporates a historic analysis about the evolution of the notion of human security vis-a-vis the principle of state international sovereignty through the lens of path dependence, and the use of cognitive modeling as a way to model the parallel evolution of and mutual interplay between these two crucial concepts. Contrary to commonly held perspectives ultimately arguing that the strengthening of one of these two concepts necessarily implies the weakening of the other, the emerging picture is one of complexity. Rather than representing polar opposites within a simple network structure, more complex modes of interactions between sovereignty and human rights have led to the emergence of a new network structure, characterized by dynamic equilibrium.

Regressing toward Federal Common Law: The Catalytic Effect of CERCLA’s Private Cause of Action

CERCLA’s Section 113, its civil proceedings provision, does not contemplate the private cause of action context in such areas as personal jurisdiction or contribution protection. The Section directly addresses only Government claims, and SARA’s legislative history rarely even discusses the private cause of action. Courts have had to manufacture a federal common law to fill in the gaps which Congress left. The congressional silence has caused courts to strain to reconcile private claims with CERCLA’s language. Atlantic Research means that process must continue.This has led to a regression to common law principles for the CERCLA private cause of action. For personal jurisdiction, failure to provide expressly for nationwide service of process relegates the matter to the usual “minimum contacts” approach constrained by principles of state sovereignty. For joinder and related issues, SARA’s confused language encourages resort to general principles of common law embodied in the uniform acts. With little prospect for reinstituting taxes for the Superfund, the key is to find a set of realistic incentives and disincentives to encourage effective remedial action with reduced government intervention. CERCLA’s private cause of action will continue to be a central catalyst in that process.This paper is a draft of a paper to be presented at the Southwestern Law School Symposium, “CERCLA and the Future of Liability-Based Environmental Regulation,” at the Southwestern Law School on November 11, 2011.

Preliminary Remarks on the Envisaged World Health Organization Pandemic Influenza Preparedness Framework for the Sharing of Viruses and Access to Vaccines and Other Benefits

Over the last few decades, the World Health Organization (WHO) has played a significant role in the prevention and control of new strains of influenza virus in the human population. Beginning in the 1950s, it has coordinated a network of WHO‐linked laboratories, charged with monitoring the changes in influenza viruses and favouring the timely sharing of virus samples, which is necessary for the development and production of vaccines. In December 2006, the said system was brought into question by Indonesia, according to which it was unfair and in conflict with the principle of state sovereignty over biological and genetic resources. Although very controversial, the Indonesian decision to interrupt the supply of candidate influenza vaccine strains boosted intergovernmental negotiation, until then not achieved, aimed at establishing a new WHO framework. This article examines the outcome of such a negotiation, as well as the aspects of the framework still under discussion. It emphasizes the innovative nature of the proposed benefit‐sharing mechanism, which would promote access to vaccines mainly through the multilateralization of intellectual property rights governance. Similarities and differences between the envisaged framework and the benefit‐sharing mechanism established by the Food and Agricultural Organization International Treaty on Plant Genetic Resources for Food and Agriculture in the field of access to plant genetic resources are analysed.

The end of humanitarian intervention: Evaluation of the African Union’s right of intervention

The right to intervene under the AU Act is a radical departure from, and in stark contrast with, the principle of State sovereignty and non-intervention, the very cornerstones of the erstwhile OAU. Although intervention has traditionally been opposed by African States and regarded as imperialism; under the AU Act, AU Member States have themselves accepted sovereignty not as a shield but as a responsibility where the AU has the right to intervene to save lives from mass atrocity crimes. Today, human rights are not a purely domestic concern and sovereignty cannot shield repressive States. Thus, if a State is unable or unwilling to protect its people the responsibility falls on other States. What is certain is that the thresholds for intervention are serious crimes under international law, which are subject to universal jurisdiction. Therefore, Article 4(h) can be viewed as providing for statutory intervention in form of enforcement action by consent to prevent or halt mass atrocity crimes. However, yet to be answered is how to reconcile the AU right to intervene with the provisions of the UN Charter, especially where the AU exercises military intervention. Nonetheless, the AU should reduce the need for costly intervention and focus more on preventive strategies.

Intellectual Property, State Sovereignty, and Biotechnology

The issue of biopiracy has attracted considerable attention in recent years. The Convention on Biological Diversity adopted a principle of state sovereignty over biological resources and the genetic information contained within those resources to address this issue. It is argued that this principle has not been adequately justified and that there are other solutions to the issue of biopiracy, based on different theories of justice, that deserve greater consideration. These alternatives include the common heritage of mankind principle and the global commons principle.

Instituições, Direito e soberania: a efetividade jurídica nos processos de integração regional nos exemplos da União Européia e do Mercosul

Baseado no estudo de caso da União Européia e Mercosul, o objetivo deste artigo é analisar certas questões decorrentes da articulação do quadro normativo oriundo dos órgãos conjuntos de integração regional, com as ordens jurídicas nacionais baseadas no princípio da soberania do estado.

Connolly's Democratic Pluralism and the Question of State Sovereignty

This article will explore William Connolly's notion of democratic pluralism—his attempt to develop a notion of agonistic democracy that is compatible with pluralism and difference, and that does not found itself on totalising ideas and essentialist identities. As part of the pluralisation of democracy, Connolly hints at the possibility of a democratic politics no longer confined to the nation state. However, this point is not sufficiently developed and contains a number of ambiguities. Here I will explore what I see as a central tension between the principle of democracy (collective autonomy) and the principle of state sovereignty. I will draw on the radical tradition of classical anarchism, as well as Jacques Derrida's notion of the democracy to come, to try to think democratic ethics and politics outside the framework of the nation state.

Japan's Human Security Policy: A Critical Review of its Limits and Failures

The concept of ‘human security’ was created by the UNDP in 1994 when the international community became aware of emerging transnational threats following the Cold War. Since then, the Canadian government has developed the idea into an emerging norm of ‘responsibility to protect’ which requires the international community to rethink traditional notions of state sovereignty and seriously consider guidelines that encourage humanitarian intervention, an approach that has been widely endorsed. The Japanese government, in contrast, has promoted the idea of human security as poverty reduction and human empowerment. This paper examines the limits of Japan's human security policy by examining its background in the geopolitics of the Asian region and its consequent grounding in the principles of state sovereignty and non-interference in domestic affairs. It concludes by suggesting that the success of Canada's human security policy reflects the transformation of the security paradigm after the Cold War and that Japan has not yet become fully aware of this profound transformation in its own security considerations.

The Responsibility to Protect—an Emerging Norm?

In recent years the concept of %an international responsibility to protect' has gained substantial support. If the government of a sovereign state grossly oppresses its people or proves incapable of protecting them, then, it is argued, the international community has a duty to intervene?initially by peaceful means but if necessary through forceful military action authorised by the UN Security Council. A former UN secretary-general described this as an 'emerging norm'. But the concept has also encountered opposition?in particular from countries that emerged to independence from colonial rule. This paper considers historic examples of intervention across state frontiers contrary to the traditional principles of state sovereignty that evolved in Europe over recent centuries. The paper does not reject international intervention in failed states or where gross and large-scale abuses verge on genocide, but it recommends a cautious approach and suggests ways of advancing the concept at the UN.

Self-determination Versus the Determination of Self: A Critical Reading of the Colonial Ethics Inherent to the United Nations Declaration on the Rights of Indigenous Peoples

The United Nations' (UN) adoption of a Declaration on the Rights of Indigenous Peoples is intended to mark a fundamental ethical turn in the relationships between indigenous peoples and the community of sovereign states. This moment is the result of decades of discussion and negotiation, largely revolving around states' discomfort with notion of indigenous self-determination. Member states of the UN have feared that an ethic of indigenous self-determination would undermine the principles of state sovereignty on which the UN is itself grounded. However, such fears are the result of very poor understandings of the ethical principles under which the relations between indigenous peoples and nation-states already have been formed under centuries of European colonialism. The principle of self-determination embraced in this Declaration does not diverge from colonial norms; it entrenches these norms as international policy. Without doubt, indigenous peoples are more likely to benefit than suffer from states' observance of the Articles within this Declaration. Reducing the challenge of indigenous peoples' rights to the notion of self-determination set out in this document, though, misses an extraordinarily important opportunity to critically investigate the ethic of rights that has produced an opposition between nation-states and indigenous peoples to begin with. A true turn in the ethics of this relationship would see not simply the institution of a right to self-determination but, rather, indigenous peoples' right to first determine the nature of self for themselves.