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Oona A. Hathaway - One of the best experts on this subject based on the ideXlab platform.
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International Delegation and State Sovereignty
Law and contemporary problems, 2008Co-Authors: Oona A. HathawayAbstract:I INTRODUCTION International law's strength and reach have grown significantly over the last half-century. Once the province primarily of diplomatic and trade treaties, international law now reaches not just interactions between States but States' behavior within their own borders as well. In the early years of the twenty-first century, more than 100,000 international treaties cover topics ranging from taxation to trade to torture--and just about everything in between. (1) This revolution in international law has brought with it many new challenges. Perhaps the greatest is the increasingly salient tension between the ideal of State Sovereignty and the notion of international order based on law. State Sovereignty requires that States have ultimate and independent authority to govern themselves and those within their territory. Yet States now routinely make legal promises that are perceived to lie in direct conflict with this conception of Sovereignty, including delegating to international institutions authority that has traditionally been held exclusively by States. This progression has not been without controversy or resistance. Indeed, it has given rise to a powerful backlash in the United States and elsewhere. Critics of international law fear that its ever-expanding scope will encroach on domestic law and authority, taking power from local authorities and delegating it to international actors that are far removed--physically, culturally, and politically--from those they seek to govern. Much of the recent scholarly and public debate about international law has been motivated by these concerns. Beginning in the 1990s, a series of legal scholars criticized international law as posing a threat to State Sovereignty. (2) Sometimes termed the "New Sovereigntists," (3) these scholars regard much of international law as a threat to both internal and external Sovereignty. Though their precise objections to international law are many and varied, one central theme holds constant across these criticisms: Modern international law gives too much power to foreign States and international organizations, stripping authority from domestic lawmaking institutions. (4) This is especially true of international agreements in which States grant authority to international bodies to make decisions or take actions in a process referred to as "international delegation." This article addresses the challenge to international law posed by these critiques. Although tension between international delegation and State Sovereignty does exist, the recent body of work errs in assuming that States' Sovereignty almost always suffers when States delegate authority to international institutions. In doing so, recent scholarship portrays the costs of delegation as larger than they in fact are. Moreover, recent work has lost sight of some of the substantial benefits of cooperation. In short, this article takes seriously the frequently voiced concerns about State Sovereignty but shows that the field of conflict between international law and Sovereignty is not nearly as extensive as critics suggest. This is not just an academic discussion. In the last decade, U.S. leaders have proven acutely reluctant to join some of the most significant international initiatives. They have, for example, refused to delegate authority to international bodies designed to monitor and control emissions of greenhouse gases and to judge the conduct of persons who have committed the most egregious international crimes. These decisions should be reconsidered in light of a more careful accounting of the costs and benefits of international cooperation than has so far been offered by either the traditional international legal establishment or its New Sovereigntist challengers. The primary focus in what follows is international delegation, both because that is the latest focus of the literature (and the focus of the symposium of which this piece is a part) and because it is a domain in which Sovereignty costs are perceived to be most salient. …
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International Delegation and State Sovereignty
2007Co-Authors: Oona A. HathawayAbstract:The growing strength and reach of international law over the last half century has deepened existing tensions between the ideals of State Sovereignty and international order based on law. State Sovereignty requires that States have ultimate and independent authority to govern themselves and those within their territory. Yet States now routinely make legal promises that are perceived to lie in direct conflict with this conception of Sovereignty, including delegating to international institutions authority that has traditionally been held exclusively by States. This has given rise to a powerful backlash in the United States and elsewhere. Critics of international law fear that its ever-expanding scope will encroach on domestic law and authority, taking power from local authorities and delegating it to international actors that are far removed - physically, culturally, and politically - from those they seek to govern. This article takes up the challenge to international law posed by these critiques. It argues that the critics of international law err in assuming that States' Sovereignty almost always suffers when States delegate authority to international institutions. In doing so, they portray the costs of delegation as larger than they in fact are. Moreover, recent work has lost sight of some of the substantial benefits of cooperation. Part I of this article outlines the challenge to Sovereignty posed by international law and especially international delegation, focusing on recent debates over the influence of international legal commitments on domestic governance. Part II reconsiders the Sovereignty costs of international delegation. It argues in particular that when we take account of State consent to delegation, the scope of conflict between Sovereignty and international delegation is substantially narrowed. Nonetheless international delegation can be in tension with State Sovereignty, and the article outlines the key sources of this tension as a preface to a discussion of the other side of the cost-benefit equation - namely, the potential benefits. Part III of the article turns to these benefits, asking how the intrusion of international law into areas that were once exclusively domestic might be explained and justified. Whether Sovereignty costs lead us to question the wisdom of specific delegations hinges on the benefits that balance against those costs. By exploring both sides of the equation in greater depth, we can come to a deeper and more empirically grounded argument about the proper role of international law and delegation in an age of global interdependence. When we do, we discover that international is often more accurately seen as an exercise of State sovereign authority than a diminution of it.
Joseph Raz - One of the best experts on this subject based on the ideXlab platform.
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The Future of State Sovereignty
Legitimacy, 2019Co-Authors: Joseph RazAbstract:This chapter is the first of four to focus on the legitimacy of the State. It starts with a question: Do increasing challenges to State Sovereignty require legal theory to be re-thought? The chapter observes that, despite these increasing challenges, State Sovereignty persists, since no alternative is available. It then argues that the success of the assortment of international organizations that challenge State Sovereignty depends on their ability to attract loyalty, which depends, in turn, on their ability to recognize the truth of pluralism and respond to diverse interests, preferences, and traditions. It also suggests that perhaps such value-pluralism is best protected by sovereign States.
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the future of State Sovereignty
Social Science Research Network, 2017Co-Authors: Joseph RazAbstract:Advances in the legalisation of international relations, and the growing number of international organisations raise the question whether State Sovereignty had its day. The paper defines Sovereignty in a way that allows for degrees of Sovereignty. Its analysis assumes that while Sovereignty has become more limited, a trend which may continue, there is no sign that it is likely to disappear. The paper offers thoughts towards a normative analysis of these developments and the prospects they offer. Advocates of progress towards world government, while wise to many of current defects, are blind to the evils that a world government will breed, and to the advantages of relatively sovereign political societies. The paper identifies the advantages of the legalisation of international relations, and the growth of international bodies. The dilemma of internationalisation is that its advantages can be obtained only if international organs acquire some of the characteristics of successful sovereign political societies, in attracting the loyalty and shaping the sense of identity of their members – a faraway prospect. The best we can hope for is a mix international regime of relatively sovereign States subject to extensive regulation by international organisations and laws. That requires a pluralistic jurisprudence of international organisations, allowing for great local diversity, of which we have so far seen only small beginnings.
Jorge Emilio Núñez - One of the best experts on this subject based on the ideXlab platform.
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About the Impossibility of Absolute State Sovereignty: The Middle Ages
International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique, 2015Co-Authors: Jorge Emilio NúñezAbstract:State Sovereignty is often thought to be and seen as absolute, unlimited. We have seen that there is no such a thing as absolute State Sovereignty. Indeed, I maintained in the first article of this series that absolute or unlimited Sovereignty is impossible because all Sovereignty is necessarily underpinned by its conditions of possibility. The present paper has two main parts. Firstly, I will introduce two different kinds of agents: (a) individuals; and (b) States. The aim is to show that these two entities that are in principle dissimilar have certain characteristics in common in what has to do with their relation with supreme authority. Secondly, I will demonstrate that ‘Sovereignty’ was not absolute at individual level in the Middle Ages. Therefore, we will better understand how the mediaeval use of the term ‘Sovereignty’ has formed our current views on the matter. That is because it is in the Middle Ages when the ancient notions that were used at the level of the individual start their anthropomorphisation into larger societal organisations.
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About the Impossibility of Absolute State Sovereignty - The Modern Era (The Latter Days)
SSRN Electronic Journal, 2015Co-Authors: Jorge Emilio NúñezAbstract:State Sovereignty is often thought to be and seen as absolute, unlimited. However, there is no such a thing as absolute State Sovereignty. Indeed, absolute or unlimited Sovereignty is impossible because all Sovereignty is necessarily underpinned by its conditions of possibility. The present article consists of two main parts. Firstly, and in order to show more clearly how Sovereignty is limited, two kinds of agents are introduced: a) individuals; and b) States. The aim is to demonstrate how different sorts of constraints or limitations operate in relation to individuals and States without diminishing their respective sovereignties. Secondly, the article identifies specific theorists or bodies of literature that take Sovereignty to be absolute and provides a brief overview of a few major thinkers who consider Sovereignty to be limited in the Modern era that followed the theories of Bodin and Hobbes. The implications of understanding State Sovereignty as limited rather than absolute are several, both directly and indirectly. A main immediate consequence is that sovereign States can cooperate together, limit their Sovereignty and still be considered sovereign.
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About the Impossibility of Absolute State Sovereignty. The Modern Era
SSRN Electronic Journal, 2014Co-Authors: Jorge Emilio NúñezAbstract:State Sovereignty is often thought to be and seen as absolute, unlimited. We have seen that there is no such a thing as absolute State Sovereignty. Indeed, I maintained in the first article of this series that absolute or unlimited Sovereignty is impossible because all Sovereignty is necessarily underpinned by its conditions of possibility. The present paper focuses on the Modern Era. What happens after the mediaeval period is crucial, because that is when the kings try to obtain all the power, and theories of total Sovereignty are presented, like those of Bodin and Hobbes. In both cases, they fail to demonstrate their thesis of absoluteness in regard to Sovereignty and their theories actually introduce limits. Moreover, Sovereignty is in practice curtailed by many elements that are particular to this period in history and that are still existent: a) by the increasing power of the people — this could in principle result in a new kind of unchecked Sovereignty, but is itself (as the theories from Locke and Rousseau will show) checked by; b) increased emphasis on individual rights; c) the use of separation of legislative and executive powers; and d) international agreements, some voluntary, some required.
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About the Impossibility of Absolute State Sovereignty
International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique, 2013Co-Authors: Jorge Emilio NúñezAbstract:State Sovereignty is often thought to be absolute, unlimited. This paper argues that there is no such a thing as absolute State Sovereignty. Indeed, absolute Sovereignty is impossible because all Sovereignty is necessarily underpinned by its conditions of possibility—i.e. limited Sovereignty is the norm, though the nature of the limitations varies. The article consists of two main sections: (a) the concept of Sovereignty: this section is focused on some of the limitations the concept of Sovereignty itself presents; and (b) a historical account of the notion of Sovereignty as it was used in the Ancient Times. The particular focus on early notions of a modern concept such as Sovereignty has to do with the fact that this early notion has been anthropomorphised with societal evolution. Therein, the current concept of State Sovereignty embraces the same limitations it had in its ancient form as a non-fully developed conceptual idea. The implications of understanding State Sovereignty as limited rather than absolute are several, both directly and indirectly. A main immediate consequence is that sovereign States can cooperate together, limit their Sovereignty and still be considered sovereign.
Liu Jia - One of the best experts on this subject based on the ideXlab platform.
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On the Jurisdiction of International Criminal Court and State Sovereignty
Journal of Northwest University of Politics and Law, 2004Co-Authors: Liu JiaAbstract:The relationship between the jurisdiction of International Criminal Court (ICC) and State Sovereignty always lies the point at issue. As a supplemental jurisdiction, the jurisdiction of ICC, which is compatible with the Sovereignty in general, is not only a manifestation of relativity of State Sovereignty but also a voluntary transfer of sovereign power as well, while the implied obligation imposed upon the third party in it has overstepped the present international institution. In order to ensure the effective operation of ICC, the integration of the common interests of international community and State interests must be upheld and the equilibrium between the pursuit for international order and State power be secured.
Gao Lin - One of the best experts on this subject based on the ideXlab platform.
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A Research of the Influence of Protection Responsibility on State Sovereignty
Journal of Jiangnan University, 2011Co-Authors: Gao LinAbstract:The responsibility to protect is to protect its citizens' responsibility for a State.When a State is unwilling or unable to protect its citizens from harm,the international community has the right to intervene.The responsibility to protect derives from challenges in which collective security transferred from the "protect States' security" to "protect States and citizens' security" after the cold war.Since International Commission on Intervention and State Sovereignty formally proposed the concept of responsibility to protect in 2001,through the 2003 celebrity panel on affirming parts of the content and the 2005 report of the Secretary-General and the World Summit on the further specification,the responsibility to protect has developed an important policy regulation of the international community.The responsibility to protect includes two aspects: State responsibility to protect and international responsibility to protect.The theory explains State Sovereignty is not only the power to its citizens,but also the obligations and responsibility to the basic human rights of its citizens.This is the new development of the traditional concept of Sovereignty,and has a profound impact on State Sovereignty.
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Reality Analysis on Transfering of State Sovereignty in the Process of the Globalization
Journal of Shanxi Teachers University, 2005Co-Authors: Gao LinAbstract:State Sovereignty is very significant for a country. Nowadays, State Sovereignty faces the new impact and challenge caused by the globalization. In the course of the globalization, the cooperation between the States becomes more inseparable, and the States face much more common problems than ever. The States have to transfer part of their Sovereignty in order to enjoy the fruits of the globalization together. It is rational and feasible for any States to transfer a portion of its Sovereignty at their willingness and independence for the countries' whole interests. It is inevitable in the ongoing of history to transfer part of Sovereignty, and the Sovereignty won't be harmed and weakened. Sovereignty transfer has become a trend in the process of globalization and regional integration. Sovereignty transfer does not mean the disfranchisement of Sovereignty, but the sharing of Sovereignty between States. To understand Sovereignty transfer as it is, will be helpful for us to maintain and expand national interests in the age of globalization.
