Academic journal article Law and Contemporary Problems

Sovereignty and the Right to Be Left Alone: Subsidiarity, Justice-Sensitive Externalities, and the Proper Domain of the Consent Requirement in International Law

Academic journal article Law and Contemporary Problems

Sovereignty and the Right to Be Left Alone: Subsidiarity, Justice-Sensitive Externalities, and the Proper Domain of the Consent Requirement in International Law

Article excerpt

I

INTRODUCTION

When a state invokes a right to sovereignty against demands made from outside its borders, the state is implicitly claiming that it has a right to be left alone and to do as it deems fit without externally imposed constraints. It is uncontroversial that sovereign states may do as they please without such constraints across some domain. States are institutions, which, from a normative point of view, are conventionally imagined as constituted by their citizens for the purpose of enabling and structuring practices of collective self-government. They are not only or even primarily globally authorized, decentralized administrators implementing international norms, even if they also have such a role to play as trustees of humanity. (1) So, to the extent sovereign states are sites of collective self-government, there must exist some domain over which the national community is in authority and not subject to external constraints. The question, then, is how to determine the boundaries of this domain and thus the boundaries of a state's right to be left alone. Here the principle of subsidiarity has an important role to play.

At its core the idea of subsidiarity as a jurisdictional principle amounts to the proposition that the more local unit should have jurisdiction to regulate an issue, unless there are good reasons for the overarching, more central level to step in. Applied to the domestic jurisdiction of states in their relationship to international law, this translates into the claim that states should have the prima facie authority to determine what qualifies as a policy challenge and how to respond to it legally, unless there are good reasons for international law to restrict what states may do and impose its own solutions. As a matter of positive international law, such an understanding of subsidiarity espouses the idea that sovereign states, as the primary building blocks of the international legal system, establish the institutional framework within which citizens practice collective self-determination. Reasons for the prima facie prioritization of states as sites for collective self-determination are numerous: they range from the virtues of relative decentralization of power to respect for local identities and preferences. (2) There are also, of course, many reasons for legally restricting a state's authority and empowering more centralized institutions, which this article will analyze. Nonetheless, any conclusive justification offered for centralizing regulatory authority must also reflect concerns for the advantages of local decisionmaking and strike a plausible balance between competing concerns. The principle of subsidiarity as a general architectural principle should be seen as structuring the process of justifying restrictions on state sovereignty by international law. (3)

Questions of jurisdiction and potential violation of the principle of subsidiarity in international law can arise in a wide range of contexts. Such questions have traditionally been associated primarily with substantive concerns regarding allocation of power and authority: Are there, for example, compelling justifications for a specific regulatory issue to be addressed on a more central, rather than a more local level? Are there compelling reasons for the EU to strike a balance between the rights of those who want to smoke in public places and the right of those who wish to not be burdened by the effects others' smoke in public, or should such a decision be left to the Member States? (4)

Questions about the form of involvement by the local or central authority are also relevant to such an analysis. For example, provided that there are good reasons for international law to establish some protections for outsiders who face risks relating to the civil use of nuclear energy by neighboring states, should such protections be procedural only, (5) or should international law establish minimum standards that any civilian's use of nuclear energy must comply with? …

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