Understanding Of State Sovereignty Research Articles

Abuse of Human Rights in Myanmar: An Urgent Appeal to Reinterpret the ASEAN Non-Interference Principle

Myanmar highlights the international community's worry over ASEAN's failure to protect the human rights of the country's citizens. Numerous stakeholders, including scholars and observers, consider the non-interference principle as the bedrock for interstate relations in the region to be the greatest barrier to ASEAN's intervention in Myanmar. Using the method of doctrinal research, this article investigates the junction of the concept of non-interference as the spirit of state sovereignty and the principle of human rights in the context of Myanmar. This article claims that the reason why human rights cannot be enforced in ASEAN, as in the case of Myanmar, is because ASEAN adheres to the principle of non-interference in the traditional expression of state sovereignty, thereby making the state the dominant actor and denying the existence of people. This article proposes that ASEAN shift its understanding of state sovereignty from the traditional to the human rights perspective, which has become a universal view that places humans as the ultimate sovereigns of a country.

Antagonistic understandings of sovereignty in the 2015 Polish constitutional crisis

Since the 2015 parliamentary elections in Poland, the government led by the Law and Justice party (PiS) has sought to win two interwoven battles: the restoration of ‘a strong state’ internally and ‘regaining sovereignty’ in the country’s relationship with the EU. By examining the 2015 constitutional crisis in Poland, this article seeks to understand how and why a domestic dispute over the nomination of constitutional judges has transformed into a conflict of sovereignty in the EU polity. The paper shows that the claims to sovereignty of political, social, and legal actors reflect opposing conceptions of this principle as well as of democracy and the rule of law. PiS’ understanding of State sovereignty is rooted in the past, echoes its Hobbesian conception, and is reminiscent of Carl Schmitt’s notion of the political and of democracy. In 2015, this conception was pitted against the supremacy of the Constitution (legal sovereignty) and the ideal of shared sovereignty. Drawing on 20 parliamentary debates, this paper shows that the 2015 Polish constitutional crisis encapsulates a conflict of sovereignty over who holds the most legitimate representation of the people and who should have the last word in key political conflicts and constitutional settlements.

NOVE KONCEPCIJE DRŽAVNE SUVERENOSTI I ORGANIZACIJE VLASTI U SRPANJSKIM USTAVNIM AMANDMANIMA IZ 1990. - UZ TRIDESETU GODIŠNJICU USTAVA RH

In the year marking three decades since the adoption of the Christmas Constitution, the importance of constitutional amendments promulgated by the Croatian Parliament at the end of July 1990, which together with the February Constitution from the time of the still existing Socialist Parliament form the basic preconditions for initial democratization of the Croatian constitutional system. From a legal-historical and constitutional point of view, the authors consider this issue important for the modern Croatian state. Traditional Croatian historiography analyzes these amendments exclusively in their substantive sense of regulating the new state coat of arms, the flag and abolishing the socialist attributes. Although the amendments are normatively not numerous, their meaning is much broader. At the heart of this analysis lie the issues of a new understanding of state sovereignty and reform interventions in state organization. The authors analyze the relevant provisions through the original records of parliamentary debates. They first point to the basic trends of constitutional changes comprised in the July amendments, referring primarily to the identity level, and then they point to the strengthening of state sovereignty and changes in the direction of developing the features of modern parliamentary democracies. The planned reorganization of the executive -administrative power is especially considered here. At the end, the feed back of the July constitutional amendments and the beginning of work on the new Constitution of the Republic of Croatia are presented.

Proliferation of Borders: On Border Policing, State, and Sovereignty

This article summarizes relevant literature in critical border studies and explores how contemporary changes in border policing and management affect the nature of the contemporary state and sovereignty. It asks: If it is not clear where exactly borders are, how does this impact our understanding of state sovereignty? How is the deterritorialization of borders challenging our understanding of territorial sovereignty? How is outsourcing "legitimate means of violence" to non-state actors on borders reshaping the state's authority? In dominant political and public discourse, borders are seen as a common and defining feature of modern statehood. The modern nation-state political theology has invested the monopoly of governance over borders exclusively to the state. However, contemporary border practices challenge such an idea. Ethnographic studies show that while borders are bound to the nation-state sovereign power, they are also sites where multiple actors come into play and are increasingly disentangled from the geopolitical lines on a map. Ethnographic focus provides insights into everyday workings of sovereign power, a topic often overloaded with abstraction and relegated to the realm of theory. However, while ethnographic studies about border control and management question the prevailing ideas about state and borders, these studies often remain trapped in statist logic and spatial assumptions of the modern territorial state. Considering the historical perspective and incorporating the analysis of economic processes on the state and border could help mitigate the shortcomings mentioned above.

Правовые приоритеты в экономической политике современной России

Legal priorities are considered in the framework of the implementation of economic policy of modern Russia, due to the fact that this category has not only legal, but also political significance and is simultaneously aimed at political and legal results. We substantiate the position that legal priorities are especially significant in state policy and, above all, in economic policy, as they establish the development directions of the Russian economy and, above all, in the framework of innovation. The transition of Russia to digital technologies determines the development and formulation of legal priorities, which causes the intensification of statutory conditions creation to ensure this transition. We highlight the disadvantages in the legal support of the digital economy in Russia, namely: the minimum requirements for the digitalization process were not established, additional mechanisms that stimulate the introduction of digital technologies by market participants were not created, etc. We analyze the problem of the interdependence of states from each other in the context of the development of globalization and digital economy, which actualizes the value of state sovereignty. We emphasize that worldview change affects the understanding of state sovereignty and attitude towards it, but at the same time state sovereignty has absolute advantages and should not be limited by anyone. Modernization of the understanding of state sovereignty and attitude towards it actualizes the analysis of the state’s national interests, including national economic security, the well-being of population, the favorable dynamics of trade with specific partners, and the formation of a legal environment for entrepreneurship.

Catholicism and Cosmopolitanism: the Confluence of Three Catholic Scholars and the Cosmopolitan Democrats on State Sovereignty and the Future of Global Governance

One of the central questions in international relations today is how we should conceive of state sovereignty. The notion of sovereignty—’supreme authority within a territory’, as Daniel Philpott defines it—emerged after the Treaty of Westphalia in 1648 as a result of which the late medieval crisis of pluralism was settled. But recent changes in the international order, such as technological advances that have spurred globalization and the emerging norm of the Responsibility to Protect, have cast the notion of sovereignty into an unclear light. The purpose of this paper is to contribute to the current debate regarding sovereignty by exploring two schools of thought on the matter: first, three Catholic scholars from the past century—Luigi Sturzo, Jacques Maritain, and John Courtney Murray, S.J.—taken as representative of Catholic tradition; second, a number of contemporary political theorists of cosmopolitan democracy. The paper argues that there is a confluence between the Catholic thinkers and the cosmopolitan democrats regarding their understanding of state sovereignty and that, taken together, the two schools have much to contribute not only to our current understanding of sovereignty, but also to the future of global governance.

A critical reflection on the conceptual and practical limitations of the responsibility to protect

The Responsibility to Protect (R2P) is without a doubt an iconic representation of the international system's effort to reinterpret the traditional understanding of state sovereignty within a growing trend towards human rights considerations. This article presents the scepticism surrounding the R2P's journey within a conservative and state-centric status quo of international relations, framed on a basic set of 1648 Westphalia treaty ideals. The article analyses the limitations in the conceptualization and actual practice of the R2P, with an incisive examination of its tendency towards becoming the norm. An African introspection based on the application of the R2P also offers an insightful critique of the principle in the changing global order.

Up in the Air Aviation in the EU ETS and the Question of Jurisdiction

From 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.

James Madison and State Sovereignty, 1780–1781

AbstractFew issues in early American politics were more contentious than the issue of sovereignty. This article argues that James Madison, during his first year in Congress, articulated and defended a vision of state sovereignty derived in part from eighteenth-century law of nations theory. Madison believed that the people of the states were sovereign, and he defended that position in a number of particular controversies in 1780–81. During his national political career, Madison returned to his early understanding of state sovereignty. Many accounts of Madison have missed the importance of the concept of state sovereignty in his thought, preferring to interpret him in a more nationalistic direction. But Madison’s position on state sovereignty laid important precedents for the use of that concept in American politics.

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.

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

Abstract From 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.

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

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.

Constitutional Structures, Sovereignty, and the Emergence of Norms: The Case of International Election Monitoring

International election monitoring (IEM) has partially redefined sovereignty. In this article I locate the origins of this change in the Americas, claiming that the Western Hemisphere's normative structure, what I call the Western Hemisphere Idea, was particularly conducive to this new understanding of state sovereignty. In the first section, I introduce the continental normative structure, highlighting the way in which it contributed to the eventual emergence of the monitoring practice in the early 1960s, and I discuss methodological issues. In the second section, I briefly review the emergence of IEM, looking at the pioneering work of the Organization of American States (OAS) in election monitoring. In the third section, I review the subsequent appearance of IEM outside the regional organization. The convergence of intergovernmental organizations and international nongovernmental organizations in election monitoring is then considered in the fourth section. Finally, I present the conclusions and theoretical implications of this piece.I would like to thank Peter Katzenstein, Lisa Martin, Valerie Bunce, Mat Evangelista, Aida Hozic, Kathleen O'Neil, Hector Schamis, and two anonymous reviewers for their comments on previous versions of this article.