Reconstructing Sovereignty

RECONSTRUCTING SOVEREIGNTY A working note on the constitutional system of the state and the development of imperative international law

by LEOPOLD LOVELACE Mershon Center, The Ohio State University I P S A World Congress, Quebec City, August 1-5 2000

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Sovereignty as supreme rule

The concept of sovereignty designates an institution of supreme rule which seems common to all politically organized peoples throughout history. Every people since the ancient polities to the most recently constituted states, concerned with the control, organization and uses of power, has also found a fundamental utility in institutionalizing various forms of the principle of the supreme rule. Quoting from Mountague Bernard’s historical account of the neutrality of Great Britain during the American Civil War, Henry Maine observes in one of his 1887 lectures on international law that by “sovereign state” it is meant “a community or number of persons permanently organized under a sovereign government of their own”, where “sovereign government” means “a government, however constituted, which exercises the power of making and enforcing law within a community, and is not itself subject to any superior government”.

Exercise of power and absence of superior control, would thus “compose the notion of sovereignty and [be] essential to it” [1]. A remarkable aspect of this institution is that it seems to have emerged in every case as a result of an autonomous process, like an inherent trait of the organization of political power among people, and not as a transplant in a pattern of external expansion and influence from from one people to another. Territorial conquest in the past has not usually meant that sovereignty was established for the first time in that land, but rather the substitution, often violent, of the local territorial supreme rule structure by that of the occupant power.

Two sources of sovereignty

Ruling supremacy and the authority to govern over people, resources, and common issues, in a given territory, have been interrelated attributes of independent political systems. Political theories of the state and the political system have persistently focused on those attributes –ruling supremacy, authority to govern, political independence of the state or system in question– with no basic disagreement on their structural association. There have been however substantial differences on the sources, or on the bases of which such structure of ruling supremacy or sovereignty and authority to govern was, and had to be, constituted.

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residual cases of such forms of state, but the new autocratic and totalitarian concepts of the political system, even if somewhat receding after the defeat of fascism in World War II and the dissolution of the Soviet state system in 1991, have substituted the divine or supernatural sources of authority by the values underlying military and communist party dictatorships.

Democratic sovereignty and revolution

Democratic theory of the state, since the fith century Athens, B. C., has found the sources of sovereignty in the consent of the people. The process of achieving democracy has been hard, long, and bloody in history, and so it remains still in many regions of the world. The most influencial episodes in shaping the pattern of contemporary democracy are probably the English revolutions and civil wars of the 16th and 17th centuries, which culminated with the Bill of Rights of 1689; the French Revolution of 1789 which, though truncated by the Bonaparte’s regime, proclaimed the Declaration of the Rights of Man and put an end to absolute monarchies in France and Spain and many other European countries; and the American Declaration of Independence in 1776, a political prologue in fact to the adoption of the Constitution of the United States in 1789 by the Philadelphia Convention.

There are differences of emphasis in the conceptual frameworks derived from these decisive episodes of the history of the political system of democracy. In the 1689 English Bill of Rights the Parliament is squarely conceived as the locus of sovereignty. The 1789 French Declaration of the Rights of Man proclaims that “the principle of all sovereignty resides essentially in the nation”, this latter being a concept somewhat obscure, though presumably related to, perhaps even determined by, that of “the general will”, from which law is supposed to emanate. The 1776 American Declaration of Independence explicitly postulates that governments derive “their just powers from the consent of the governed”, but it also, for the first time, establishes that the end of government is to secure fundamental rights of the people such as “life, liberty, and the pursuit of happiness”.

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ideological, simplifications. It was first spoused perhaps by the Pythagorean Circles in the late 6th century B. C., somewhat incorporated into the Stoic schools of the 5th century, and more throughly conceptualized by Plato in his writings on justice and government. It emphasized rather abstract notions of righteousness based on ethical concepts of the good, wisdom of judgment or reason, and knowledge of the truth. It was perhaps through the juristic strands of the Stoic schools that it became influencial among the ancient Rome jurists to given shape the Roman Republic’s particularly robust, if still primitive, concept of legal sovereignty. The concept was to persist in England through the judicial incorporation of Roman cannon law. The English civil wars were dominated by the conflict for the control of the sovereign prerogative between Parliament and the Crown, but they had been preceded by another contest between them and common law courts [2]. In 1610, Judge Coke ruled in the Bonham’s case that, “when an act of Parliament is against common right or reason or repugnant or impossible to be performed, the common law will control it, and adjudge such act to be void” [3]. The theory of judicial supremacy as a source of legal sovereignty was overruled in England by the High Court of Parliament, but at the turn of the eighteenth century it passed on to the courts of the American Territories through the Calvin’s case of 1702. Professor Louis Fisher observes that, even if the Bonham’s case “provides inadequate support for the American concept of judicial review, it was accepted as good law and precedent by those who wanted to break with England” [4].

Sovereignty in America

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directly in the supreme law of the land, can be derived from a textual interpretation of the Constitution itself by finding the normative coherence and determinacy of the relationship between the judicial power which extends “to all cases in law and equity, arising under this Constitution, the laws of the United States, and treaties which shall be made under their authority”, in Article 3, Section 2, clause 1, and the provisions, in Article 6, paragraph 2, that “this Constitution, and the laws which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding” [9].

Constitutional sovereignty

The tension between the functions of majoritarian democracy and the now abstract, objective principle of a juridical supreme rule, appears thus essential for the constitutionalization of sovereignty or, if we will, its legalization. However, in terms of the actual, descriptive pattern of constitutional development, as it is going to articulate the complexion of the sources of authoritative public decisionmaking in the political system of democracy, it may be accepted that the constitutionalization of sovereignty consists of a political moment of its own, which is not identical to its jurisdictional reconstruction. In other words, it may be accepted that the constitutionalization of sovereignty would have taken place in the first new nation, the Republic of United States of America, without the Marbury jurisprudence. Marbury, however, could not have happened without the background of the actual texture of the American Constitution as it was adopted by the Founders.

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There are significant elements of both logic and interpretational incidents in the Records of the Philadelphia Convention and in the exegesis of the constitutional plan in the Federalist Papers, which anticipate Marbury. There is also significant jurisprudence in federal and state courts anticipating the 1803 Marbury decision of the U. S. Supreme Court [10]. Moreover, there where the constitutionalization of sovereignty remained shaped only by the political representative moment of democratic development, as it was the case in a number of European continental countries, the overall thrust of the constitutionalization and legalization of the supreme rule, and constitutional democracy itself, were tragically to fail. The most catastrophic failures were the Kerenski’s Republic in Russia and the Weimar Republic in Germany. But also the Third and Fourth Republics in France failed, as it did the Republic in Spain.

The concept of failure here is not meant to place the exclusive burden of responsibility on those political systems. Perhaps the forces of destruction were overwhelming, as we can see by the deadly controlling combination of extremist political ideologies. Yet the fact is that, when democracy was restored, with direct international intervention in Japan in 1945-46 [11], under direct international supervision in Italy in 1947-48 [12], in Western Germany in 1948-49 [13], or indirect international monitoring in Spain in 1977-78 [14], the renewed constitutionalization of sovereignty was institutionally linked this time around with an explicit establishment of the jurisdictional control of constitutional legality, a power checking structure over the political conditions of majoritarian democracy in the form of powerful Constitutional Courts.

The effects of the constitutional function of sovereignty

The constitutional function of sovereignty has had three structural, or redefining, effects on the power basis of the political system of the state. It has vertebrated the relationship between the interests of the constituent –the people– and public policymaking through the mechanisms of democratic representation. It has standardized and provided with relative efficiency, transparency and accountability the constitutional decisionmaking rules and the operation of the government. Last but not least, it has helped finding, and establishing the closest we can get this far among human communities to a set of objective, general or universal, and normative criteria, mostly procedural but also with some substantive fundamentals, for conducting the political system.

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on this part one in examining the international law function of sovereignty, and at various moments of parts two and three, respectively on the characteristics of the contemporary crisis of the state, and on the second reconstruction of sovereignty as the rules of the international jus cogens have become of direct application by the international community. I find useful, however, to pause here briefly to anticipate some explanations of what it may mean that these three elements of the redefinition of the power basis of the state are also essential for the system of international law. I’ll be synthetic in stating the basics of these links, as I am ellaborating on them later.

Vertebrating the interests of the people: the popular reconstruction of sovereignty

I propose to consider this effect of constitutional sovereignty essential for the new system of international law for three reasons, three decisive, qualitative reasons, I’d say. One reason is that, when the interests of the people become the general basis of national public policymaking in the democratic state, so do by extension these interests, articulated across nations, become, potentially at least in the first place, the basis of a democratic international political system: international public policy in the large global policy arenas of economics, environmental protection, peace and security or human rights and criminal justice, of which the new international law is instrumental, are bound to become also increasingly representative of the transnationally vertebrated interests of the peoples of the international community.

Another reason is that the redefinition of national sovereignty on the basis of the sovereignty of the people changes the subjective complexion of the international personality of the state, of which sovereignty remains the defining outcome attribute [16]: the state may remain the fundamental or constitutive international legal person because its sovereignty is the sovereignty of its people [17], which may conversely mean, as increasingly does in actual international practice, that the state may lose its sovereignty when its people is no longer sovereign, at least in such a manifest way as both its capacity for government and for conducting international relations become impaired. Finally, a

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third powerful reason why the popular reconstruction of sovereignty is essential for international law lies in the fact that such an effect has turned out absolutely instrumental for the codification, development, implementation and incorporation of the international law of human rights. The three historical acts of popular sovereignty which put an end to the conceptual framework of dynastical sovereigns, and thus terminated the ancient regime forever –the 1689 English Bill of Rights, the 1776 American Declaration of Independence and the subsequent 1789 Constitution, and the French 1789 Universal Declaration of the Rights of Man– are national acts which provided the conceptual background, the historical imagination, of the most formidable forces of political change of our world: civil liberties and fundamental freedoms, and the right of self- determination. In so accomplishing, these revolutionary national acts were also the beginning of the end of the purely institutional, bureaucratic concept of statehood as the sole basis of the international persona.

Constitutional decisionmaking rules for effective governance

The second redefining effect of the constitutional reconstruction of sovereignty –the standardization of the constitutional decisionmaking rules for operating the government, in American terms, or the state, in European terms– is generally of a procedural nature, and it should also be regarded as essential, indeed a necessary condition, a sine qua non, of the contemporary system of international law, because it determines the characteristics of how the state meets its structural requirements. Under international law the state retains its international personality because it fulfils two ‘passive’ or given requirements, population and territory, and because it is capable of exacuting two other ‘active’ or dynamic requirements, capacity for governing, and capacity for conducting international relations [18]. In terms of the popular reconstruction of sovereignty, internal or domestic government is now a far more complex operation, and one which is not severable from the status and the obligations of that particular state in the international system. And both status and obligations are functions of similarly complex patterns of practice concerning the three constitutional procedural principles of the system of international law, good faith, consent, and pacta sunt servanda [19].

Supremacy of the rule of law

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simple political statement of which might well be John Adams’ dictum that “the very definition of a republic is an empire of laws, and not of men” [20]. It is supposed to have been embodied also in the supremacy clause in Article VI, paragraph 2, of the American Constitution, which provides that “[t]his Constitution, and the Laws of the Unites States which shall be made in pursuance thereof, and all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land”. The supremacy clause is generally recognized as one of the direct sources of the power of judicial review. Equivalent provisions have been incorporated in other contemporary constitutions [23], though in some cases courts are explicitly denied the power to determine the constitutionality of legislative acts [24] or that power may be restricted by law [25], whereas in others the constitutional review of legislative acts has been made almost mandatory as a condiction of its promulgation [26].

The end result of the operation of these political systems is however quite similar as to the paramount position of the rule of law and its discharge under likewise common criteria of independence and objectivity, impartiality, equability and due process or procedural justice. Even the role of courts becomes increasingly comparable across constitutional democracies as a consequence of their relatively better position to deal with the growing complexity of conflicts, perhaps as a consequence also of their relatively more proportionate equidistance with respect to the contradictory sources of those conflicts. Factors outside the original scheme on the role of the judicial power, such as the territorial complexion of the political system, may end strengthening naturally the position of the courts as equidistant constitutional decisionmakers, as it has been the case with the Canadian and Australian Supreme Courts.

We are thus left with uncertainties as to what is then the meaning and the practical significance of the abstract principle of the rule of law, especially when we are trying to understand how does the ‘internal’ or constitutional function of sovereignty relate to its ‘external’ or international law function, and how does such an interrelationship work, given that both functions appear respectively central and instrumental for so perceptibly separated and different legal systems. But such uncertainties seem more influenced by the perceived differences in the comparative constitutional statement of the principle, than by

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the expectations of entitlements and responsibilities which, though not taken for granted even in strong democracies, are generally associated with the political system governed under the rule of law. Whereas constitutional differences should be construed as evidence of the flexibility with which the principle may be articulated and does evolve across political cultures, there are surely certain elements in it which are common to all. At the most basic level of its functions, that which is common may be considered the law itself, in the Austinian sense, “a general command of a sovereign addressed to his subjects”, where sovereign may also be understood as a legislative body [27]. Experience shows, however, that law may be expression of divides, and that it may encourage them too, in political societies.

Moreover, for obvious reasons related to the nature of this material at this time, diffusing these uncertainties must be provided now in a clear way, simple and succint. Three basic levers of comprehension, or ‘epistemic hunches’ can help much here: The first is the need for system. The second is that the rule of law, the core outcome of the constitutional reconstruction of sovereignty –its first reconstruction and also its first, internal, function– is what makes the system possible. And the third is that, once we have a system based on a universal institution, or at least universalizable –the rule of law– every system, municipal, national or constitutional, may relate coherently with each other, and may relate coherently above all, for our purposes in this discussion, with the system of international law.

Sovereignty in the system of international law

In the system of international law, the trajectory of the institution of the supreme rule, sovereignty, has followed a coherent path with the process of its progressive legalization, or constitutionalization, in the system of the state, yet one also of increasing complexity in relation to its political process of articulation as a function of representative democracy. In terms of the three structural, redefining effects which the constitutional function of sovereignty has had on the power basis of the political system of the state, under international law it has fared the best on the third, the thrust toward stronger objective and universal criteria as basis of international rights and obligations, including those which concern the relations between states, and between states and the other entities provided with different degrees of personality, or entitlement and capacity for action in relation to it.

The constitutional recognition of the fundamental rights and liberties of people, within the system of the state, has had its coherent correspondence in the progressive development, codification and incorporation into general international law through

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international practice of the principles and rules integrating the body of international jus cogens or imperative international law. The legalization of sovereignty in the system of international law has also contributed stronger, more objective and procedurally efficient decisionmaking rules for the conduct of the relations among states and for purposes of international public policy making concerning the commons, the domains of internationally protected interests and the common heritage of humankind. In terms of the relationships between these two aspects, and in turn between them and what was identified as the first effect on the power basis of the state system – the vertebration of constituent’s interests and public policymaking through the mechanisms of democratic representation – the complexity of the problem which arise is simply next to the fundamental questions of world order, and therefore appalling, and the difficulties are really immense.

And the international law function of sovereignty

The international law function of sovereignty is now recognized generally to have a dual nature. Professor Bleckman provides an excellent survey of the characteristics of this duality in his essay on Article 2(1) of the United Nations Charter, for thecommentary of the Charter edited by Professor Simma on the occasion of the fiftieth anniversary of the Charter [28]. Article 2(1) of the Charter, establishing the first enumerated principle of the Organization and its member states, provides that “[t]he Organization is based on the principle of the sovereign equality of its Members”, and it is an excellent concept of departure for understanding the status of the institution of the supreme rule in the international system, and the way this latter perceives it, at least as an organized multilateral structure.

The provision has of course inspired the core of the basic thrust of the international legislation – the ‘universal’ contents of multilateral treaties – [29], of the political jurisprudence of the United Nations, particularly through the resolutions of the General Assembly [30], and the spirit of the law in the international judicial jurisprudence, in the first place that of the International Court of Justice [31]. But it has been seriously challenged from the very beginning of its adoption. The very structure of the Organization, with the distinct hierarchy on the nature of the obligations derived from the acts of the two political organs, particularly as expressed in Articles 24, 25 and 27, on the functions and powers of the Security Council, by comparison with the powers provided for the General Assembly, has encouraged such challenges. Goodrich, Hambro and Simons, in their commentary on the Charter, note that “according to the report of the technical committee which considered the matter at San Francisco, ‘sovereign equality’” was supposed to include “the following elements: 1) that states are juridically equal,

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2)that each state enjoys the rights inherent in full sovereignty, 3) that the personality of the state is respected, as well as its territorial integrity and political independence, and 4)that the should, under international order, comply faithfully with its international duties and obligations” [32].

The structure of normative tension in the rights and duties of states

There is obviously a normative tension among these different aspects of this dualistic principle, which is however not a random development. The 1949 Draft Declaration on Rights and Duties of States explicitly articulates such a tension in declaring that “the states of the world form a community governed by international law” [Preamble, para. 1], under which every state has the right to independence [Article 1], and the right to equality in law with every other state [Article 5], but also the duty to treat all persons under its jurisdiction with respect for human rights and fundamental freedoms and without distinction as to race, sex, language or religion [Article 6], and the duty to ensure that conditions prevailing in its territory do not menace international peace and order [Article 7] as well as to settle its disputes with other states by peaceful means “in such a manner that international peace and security, and justice, are not endangered” [article 8] [33].

Not unlike the characteristics of the legalization of sovereignty within the state system, there is a varying gap between the ideal normative framework of the Declaration of Rights and Duties of States and the realities of international practice. Does that mean the normative tension, which is inherent into the relationships between rights and obligations of any large-scale democracy –to use Dahl’s term– is wrongly established or flawed in terms of the values underlying such principles for the chartering of international relations? Where do such practical gaps appear? Let me pause for a moment on the first question.

What the Declaration does, and so it is verifiable in the records of the International Law Commission when it was being prepared, is to establish an unquestionable juridical concept of both independence –one of the essential attributes of the endowment provided by the organized structure underlying the institution of the supreme rule– and equality. This was a form of inducing precision into a principle, or compounded principle – sovereign equality– which had appeared as fundamentally political. I would like to say, rather constitutional, but the constitutionality of the acts embodied in the Charter, given the predominantly interstate nature of the international system, is by definition political or perhaps metapolitical, for as long as the international practice, when pursued with a sense of juridical conviction or with a sense of legal fundamental obligation does not

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transform them into directly applicable constructs, capable of shape, providing structure and also integrity –in the Dworkinian aception– the international acts.

What matters here is the fact, almost an absolute one in the constitutive horizon of the organized international order, that without such a juridical determination, there is neither independence nor equality, and therefore there is no sovereignty either, in as much as this latter is, beyond the imaginary construct of the will to abide by superior, paramount principles of political order, an actual outcome of a number of specific functions, which are given, which exist, and produce sovereignty, or do not exist, and yield political dependence first, and potentially may carry with it next legal external intervention: the instant when such state has lost its sovereignty pro tempore, it may be presumed. Since nations and states, like people, are by nature materially unequal, only juridical equality establishes a variation of the Rawlsian original position, which did not exist as a political function in the first place. The same applies to sovereignty both as the will to supreme and general rule and as a practical outcome designating the infinitely open-ended process of exercising self-government. In fact, it has been a long, bloody and protracted history of extricating themselves from the departing material and political inequality to arrive at the paramount principle where internal and external sovereignty converge into a sort of working, permanently adjustable and conflictive construct which perhaps could be captured by the old-fashioned term of the common law. That would explain why roughly comparable equals in material terms, in the community of states, may be substantially unequals in juridical terms; and conversely, why extremely unequal states, in material terms, may be and are, and you can find the cases immediately, fundamental equal in juridical terms.

Par in parem non habet imperium

The international law community has been since the earliest times a sort of “epistemic community” of its, never completely integrated on either side of the functional equation of the practice of the rule of law in international relations. Sovereignty, the institution of the supreme rule, was logically a fashionable construct at the time of the Treaties of Westphalia and perhaps for near three centuries after that. During most of that time the institution was conceived as a external instrument, reflecting the ‘absolute control of the prerogative to govern’, and the impenetrability of the nation state. In terms of the foreign policy of states, it reflected the will to maintain by all necessary means the independence which had been bloodily achieved from preexisting imperial and subordinating structures. As a matter of fact the very principle of the jus gentium was in that context viewed as a residual of the imperial system.

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There was a Spaniard scholar, Vitoria, who reflecting upon the expansion of the empire into the Americas had produced an interesting concept, in his Relecti de Indis in the second decade of the sixteenth century, the ordo ordinata securitatis. The idea was that the security of the international order had to be based on a real order determined by the equality of those which integrated it. This was an intellectual concept and it could not prosper at that time. Instead, the general principle of the jus gentium as an imperial construct, was in fact substituted by a working outcome of the agreements of Osnabruck and Munster: Par in parem non habet imperium. The irreductible nature of the nation state now was not to be questioned by any other principles than those which simply recognized its absolute sovereignty. This, though apparently a very practical stance, was no less untenable a position over time, and depending on the nature of the specific cases, than the historical jus gentium.

In an early writing, before completing De Jure Belli ac Pacis in 1623 or 1624, which has been only recently identified and edited, Hugo Grotius himself would have found a whole array of arguments to challenge the validity of the principle, when it affected the rights of the Dutch people to independence from Spain [34]. Throughout these centuries of predominance of the absolute sovereignty principle it has been paradoxically the transgression of sovereign rights at different intervals and episodes what has prompted defensive responses which shifted increasingly its value neutrality to value contents, in the ordering of international relations, with growing restraints on the discretion it was supposed to grant.

Legal absolute sovereignty

Every major war in the process has been initiated in connection with varying aspects of trespass or infringement upon the principle, and yet premised on the ultimate freedom of the sovereign to determine the fundamental nature of its interests. From the Napoleonic wars to World War II, every major episode of this kind may be considered an excess of sovereignty which was bound to end with additional curtailments. When the United States joined into this process after it became an independent nation, it also embraced the absolute sovereignty concept almost immediately. But it was going to do so with and through the legal mind which characterized its own constitutional state.

In 1812, when Europe was still bleeding from imperial clashes that were simultaneously tearing apart and redefining sovereignty, Chief Justice Marshal, delivering the opinion of the Supreme Court of the United States, rejected the claims of two American citizens as to that their vessel had been wrongfully seized by France, on the basis that this was a sovereignty act, and that a foreign government could not be subject to the jurisdiction of

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the courts of another country, even if it was in the territory of that country that event had taken place [35]. When we ponder on the growing number of foreign sovereigns which are and have been involved in processes of litigation in American and foreign courts, it seems a substantial change has taken place with respect to the meaning of absolute sovereignty. Yet, that may not be quite the case if we observe that in most of those cases the foreign sovereigns are in fact legally construed as private persons, as determined by the nature of their acts.

From the Lotus case to Nuremberg

The turning point in the international trajectory of sovereignty in our century may be shaped by the interval between two very different jurisdictional acts, the proceedings of the Case of the S. S. Lotus (France v. Turkey), decided by the Permanent Court of International Justice in 1927, and the Judgment of the International Military Tribunal at Nuremberg in 1946. In well-known dicta in the Lotus the Court declared that international law “governs relations between independent states”, and “restrictions upon [such] independence [ ] cannot therefore be presumed”.

Echoing Chief Justice Marshall’s opinion in The Schooner Exchange, it went on to state that, nevertheless, “the first and foremost restriction imposed by international law upon a state is that –failing the existence of a permissive rule to the contrary– it may not exercise its power in any form in the territory of another state” [36].

The Nuremberg Judgment did not deal with the question of sovereignty as an absolute principle, but it went on to modify the international status of some of its fundamental tenets. It established in the first place that any person who commits an act which constitutes a crime under international law “is responsible therefore and liable to punishment”, that such a responsibility is not relieved by the fact “that internal law does not impose a penalty for an act which constitutes a crime under international law”, and that the person is not relieved from such a responsibility either by the fact that he “acted as head of state or responsible government official”, or “pursuant to order of his government or of a superior”. It then categorized, for the first time in the history of international relations, a number of acts which are “punishable as crimes under international law”: a) crimes against peace, with could be of two types: “planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances”, and “participation in a common plan or

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conspiracy for the accomplishment of any of the acts mentioned under the [first type of acts]”; b) war crimes, which the Judgment defined as

“violations of the laws or customs of war which include, but are not limited to, murder, ill-treatment or deportation to slave-labor or for any other purpose of civilian population of or in occupied territory; murder or ill-treatment of prisoners of war, of persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity”; and c) crimes against humanity, such as “murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population, or persecutions on political, racial or religious grounds, when such acts are done or such persecutions are carried on in connection with any crime against peace or any war crime” [37].

In their comments on this case, Professors Henkin, Pugh, Schachter and Smit observe that it was never adopted a definition of war of aggression, “[a]lthough the United States representative tried to have such a definition included in the Charter, his efforts were rebuffed”. One of the core concerns of the Nuremberg Tribunal, they note, “was the imputation of individual criminal responsibility”, and therefore the “use of the concept of aggressive war was influenced by the notion of criminal conspiracy” [38].

In 1974 a limited agreement was to be reached on the definition of aggression, by reference to the external behavior of the first use of armed force by a state, as constituting “prima facie evidence of an act of aggression”. Then, during the early 1990s, as a consequence of the nature of the internal wars in the Balkans and in central Africa, more expansive concepts of aggression were adopted, linking them to new international legislative developments on the categories of war crimes and crimes against humanity, first identified by the Nuremberg jurisprudence. In 1998, an international diplomatic conference was to adopt the Rome Statute of the International Criminal Court, Article 5 of which categorizes four crimes within its jurisdiction: genocide, crimes against humanity, war crimes, and aggression. This latter remaining the main bone of contention again in the technical debates which have followed in the multilateral state system for purposes of carrying into effect the Statute and establishing the Court.

In less than twenty years, from the Lotus case to the Nuremberg jurisprudence, a qualitative shift in the status of the principle of the supreme rule in the international system took place. Perhaps not very many were conscious of the process, but those who were had a clear awareness of the sea-change which was taking place. Writing in the wake of that process, Wolfgang Friedmann was pessimistic on the capacity of nations to

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reach consensus on the fundamental question of aggression, the differences, he observed “are primarily ones of objectives [ ], essentially of a political and ideological, not of a logical character” [39]. He had also seen national sovereignty as an “anachronism”. Almost thirty years later, in his course at the Hague Academy, Professor Henkin agreed generally with such a diagnosis, “[f]or legal purposes at least, we might do well to relegate the term sovereignty to the shelf of history as a relic from an earlier era” [40].

Universal juridical sovereignty

The construct I believe Professors Friedmann and Henkin refer to in these observations is a political, maybe rather ideological concept of uncontrollable power, supposedly exercised, somewhat regardless of the means, through the system of the nation state.There seem to have been emerging as a consequence of both the constitutional process of the state and the imperative international law which takes its first solid roots with the Nuremberg jurisprudence, a juridical concept of sovereignty with two corresponding manifestations. One is the territorial structure, which provides the spatial basis of the outreach of political authority in the system of the nation state, that was the concept so identified by the Permanent Court of International Justice in the case of the Lotus in 1927. Such a territorial sovereignty, established in the form of jurisdiction, has however a life of its own, in order to determine the legal status of conduct and the protection of persons and interests which, whether directly, or indirectly in the form of effects, have largely a territorial configuration. The legal system of the state would now be in charge of effecting such a territorial jurisdictional function. The other is an evolving universal juridical sovereignty, historically the result of a process of convergence between the constitutional law of the state and the body of customary rules and principles which constitute the international imperative law.

Technically, there remains a configurative tension in that the interactions between and across the constitutional law of the state constitute by their nature a corpus of coordination law, at the best of cooperation law, whereas the dynamics of international imperative law is one which tends to elevate the very locus of universal juridical sovereignty to its logical corollary, a global system of supreme rules of subordination.

Evidently such a system is not concerned with every aspect of social and political life, but with a fairly limited yet central category of interests, which perhaps could be, on the basis of the available evidence stemming from the various processes of international and transnational interactions, narrowed down to these the prohibition of aggression (internal and external), the right of democratic governance, and fundamental human rights and equal justice before the law. There is substantive evidence concerning these

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internationally protected interests. I suspect however that the communities of people more attentive to, or affected by other dimensions of life in the planet, such as economic relations or the protection of the earth’s environment, may find these categories of imperative values too limited to constitute an effective system of universal juridical sovereignty.

Universal juridical sovereignty does not seem incompatible with, but rather instrumental for the achievement of the basic constitutional values of the state, as the territorial structure where both democratic representation and control are exercised, and where the principles of self-government and self-determination are deepened in the face of ever growing complexities which require permanent adaptation between the fundamentals of home rule in the context of diversity. At the same time the weltgrundnorm evolves from the positive interaction of the globalization of democracy and the rule of law, a neo- Westphanian trend emerges from within and across the system of states, putting forward a counter-juridical entropics which affects old democracies and new ones. The reconstruction of sovereignty interval, against the background of the new forces of entropy in the international system, appears thus as the most dangerous and complex challenge of the next decades.

Notes

1. International Law by Henry Maine, Lecture III, The Avalon Project at the Yale Law School, ; Henry Maine, INTERNATIONAL LAW: A SERIES OF LECTURES DELIVERED BEFORE THE UNIVERSITY OF CAMBRIDGE, 1887, New York: Holt (1888). Compare Bryce, The Nature of Sovereignty, II STUDIES IN HISTORY AND JURISPRUDENCE 503-555; Raz, THE CONCEPT OF A LEGAL SYSTEM 5-11, 27-33, 34-43 (1980). 2. See Smith, CASES AND MATERIALS ON THE DEVELOPMENT OF LEGAL INSTITUTIONS 324-335 (1965); Holdsworth, IV HISTORY OF ENGLISH LAW 84ff. (1909). 3. Engl. Rep. 646, 652; Plucknett, Bonham’s Case and Judicial Review, 40 HARVARD LAW REVIEW 52-54 (1926). 4. Louis Fisher, AMERICAN CONSTITUTIONAL LAW 39 (3rd edition 1999). 5. FEDERALIST PAPERS 9 (Hamilton). 6. Id., 15, 30 to 36. 7. Id., 39 to 44, 47-48, 51 (Madison). 8. Id., 44 (Madison), 64 (Jay), 75 (Hamilton). 9. Wechsler, Neutral Principles in Constitutional Law, HARVARD L. REV. ; Marbury v. Madison, 5 U. S. (1 Cr.) 137 (1803), “[ ] the people have an original right [ ] [and] [t]his

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original and supreme will organizes the government [ ] [under] the Constitution [which] controls any legislative act repugnant to it [ ]”; and McCulloch v. Maryland, 17 U. S. (4 Wheat.) 315 (1819); Fischer, AMERICAN CONSTITUTIONAL LAW 48-53. 10. Hayburn’s Case, 2 Dall. 409 (1792); Hylton v. United States, 3 Dall. 171 (1796); Holingsworth v. Virginia, 3 Dall. 378 (1798); Haines, THE AMERICAN DOCTRINE OF JUDICIAL SUPREMACY (1914), reports that in 1789 to 1802 eleven state judiciaries exercised judicial review over state statutes; Fisher, supra note at 43-44. 11. International Constitutional Law, Japan Index, at . 12. Id., Italy Index, at . 13. Id., Germany Index, at . 14. Id., Spain Index, at . 15. Dahl, ON DEMOCRACY, especially “What Political Institutions Does Large-Scale Democracy Require?”, in part three on actual democracy, at 85ff. (1998). 16. Supreme Court of the United States, 1812, The Schooner Exchange v. McFaddon, 11 U. S. (7 Cranch) 116, 3 L. Ed. 827; Permanent Court of International Justice (1927), The Case of the S. S. Lotus (France v. Turkey), PCIJ Ser. A No. 10; Henkin, Pugh, Schachter, Smit, INTERNATIONAL LAW-CASES AND MATERIALS 1126, 1129-1131, 63-70; Crawford, THE CREATION OF STATES IN INTERNATIONAL LAW 26-27, 71 (1979). 17. Franck, The Emerging Right to Democratic Governance, 86 AMERICAN JOURNAL OF INTERNATIONAL LAW 1 46 (1992); Crawford, Democracy in International Law, Inaugural Lecture, University of Cambridge (1993). 18. 1949 International Court of Justice, Reparation for Injuries suffered in the Service of the United Nations, Advisory Opinion; 1933 Montevideo Convention on the Rights and Duties of States; RESTATEMENT (THIRD), THE FOREIGN RELATIONS LAW OF THE UNITED STATES # 201, Comment e. 19. 1969 Convention on the Law of Treaties, Preamble, para. 3, Arts. 26, 34; but see Articles 38, 53, 63, and 75. 20. Thoughts on Government c. 1776; JOHN ADAMS 1735-1826: CHRONOLOGY, DOCUMENTS, AND BIBLIOGRAPHY (Bremmer editor 1967); and at A Hypertext on American History (G. M. Welling, Project Coordinator), . 21. FEDERALIST PAPERS 27, 33, 34 (Hamilton); 39, 44 (Madison). 22. Fischer, supra note at 37-38. 23. Constitution of Germany, Art. 28(1); Italy, Arts. 101(2), 134, 136, 139 [“the Republican form of the State cannot be changed by way of Constitutional amendment”]; Israel, Basic Law on Human Dignity and Liberty, Section 11; Japan, Preamble, paragraph 3, Arts. 76(3), 81, 98 [probably the closest in contemporary constitutional law in force to the supremacy clause in Article VI(2) of the U. S. Constitution; Portugal, Art. 2; South

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Africa, Preamble, para. 5, Section 1(c) [“the Republic of South Africa is [ ] founded on the supremacy of the constitution and the rule of law”]; Spain, Preamble, Arts. 9(1), 117(1), 161, 163; Sweden, Ch. 1, Art. 1; Switzerland, Art. 5(1). 24. Constitution of the Netherlands, Art. 120 [“The constitutionality of Acts of Parliament and treaties shall not be reviewed by the courts”]. 25. Constitution of Norway, Article 88(1). 26. Constitution of Ireland, Article 26(1.1). 27. John Austin, THE PROVINCE OF JURISPRUDENCE DETERMINED (1861, 1954); Raz, supra note at 5 (1980). 28. Bleckman, Article 2(1), THE CHARTER OF THE UNITED NATIONS 77-89 (Simma editor 1994). 29. The first universal instrument of international legislation in the new system of international law was the Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the General Assembly resolution 260/A (III) on 9 December 1948, entry into force 12 January 1951, at ; in 1949 the four Geneva Conventions were adopted by a diplomatic conference, and the General Assembly ratified the International Law Commission’s draft which became the Declaration on Rights and Duties of States; see Kelsen, Draft Declaration on Rights and Duties of States, 44 AMERICAN JOURNAL OF INTERNATIONAL LAW 2 259 (1950); in 1950 the General Assembly was to adopt also the Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal, at . 30. The powerful opening of the political jurisprudence of the General Assembly which has rechartered the course of international law was the 1948 Universal Declaration of Human Rights, the Magna Carta for Humanity, see at . 31. The first case decided by the International Court of Justice in the new era was the Corfu Channel case (United Kingdom v. Albania), the importance of which lies in the first place in its political process: both Britain and Albania accepted the recommendation of the Security Council to submit their dispute –two British destroyers struck mines in Albanian waters– to the International Court of Justice. In 1947 and 1948 the Court issued two landmark advisory opinion which were two rechart as well the map of the international legal system, Conditions for Admission of a State to Membership in the United Nations and Reparation for Injuries suffered in the Service of the United Nations. 32. UNCIO, Documents, VI, 457; in CHARTER OF THE UNITED NATIONS- COMMENTARY AND DOCUMENTS 36-40, 37 (3rd edition 1969). 233 International Law Commission, at . For a recent survey of “challenges to the traditional international law system of sovereignty and

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equality”, see Kingsbury, Sovereignty and Inequality, 9 EUROPEAN JOURNAL OF INTERNATIONAL LAW 4 (1998). 34. Peter Borschberg, HUGO GROTIUS “COMMENTARIUS IN THESES XI” AN EARLY TREATISE ON SOVEREIGNTY, THE JUST WAR, AND THE LEGITIMACY OF THE DUTCH REVOLT (1994). 35. The Schooneer Exchange v. McFaddon, 11 U. S. (7 Cr.) 116; Henkin et al., supra note at 1129-1131. 36. Case of the S. S. Lotus 37. Judgment of the International Military Tribunal at Nuremberg 38. INTERNATIONAL LAW 880. 39. THE CHANGING STRUCTURE OF INTERNATIONAL LAW 255. 40. INTERNATIONAL LAW: POLITICS AND VALUES 10 (1995).

WORKING MATERIALS . Notes on sovereignty in a state.AJIL 1/1 105 . The rule of law and the disintegration of the international society. AJIL 33/1 56

FRAMEWORK 1 Act of state. 2 Equality of states [“Sovereignty and inequality”, by Kingsbury, in INEQUALITY, GLOBALIZATION, AND WORLD POLITICS, Hurrell and Woods, eds., 1999]. 3 Immunities of foreign states [STATE IMMUNITY AND THE VIOLATION OF HUMAN RIGHTS, Brohmer, 1997]. 4 Jurisdiction [INTERNATIONAL JURISDICTION AND JUDGMENTS PROJECT: REPORT, American Law Institute, 2000] [JURISDICTION IN INTERNATIONAL LAW, W. Michael Reisman, ed., 1999] [THE PROTECTIVE PRINCIPLE IN INTERNATIONAL CRIMINAL JURISDICTION, Cameron, 1994] 5 Legitimacy of governments [GOVERNMENTAL ILLEGITIMACY IN INTERNATIONAL LAW, Roth, 1999] [THE POWER OF LEGITIMACY AMONG NATIONS, Franck, 1990] [THE RECOGNITION OF STATES, Grant, 1999]. 6 Persons in international law 7 Secession [THE DYNAMICS OF SECESSION Viva Ona Bartkus 1999 ] [WARS IN THE MIDST OF PEACE,] 8 self-determination [AT THE EDGE OF THE STATE: INDIGENOUS PEOPLES AND SELF-DETERMINATION, Maivan Clech Lam, 2000 ] [AUTONOMY, SOVEREIGNTY, AND SELF-DETERMINATION Hannum 1996 ] [ETHNIC SELF-DETERMINATION AND THE BREAK-UP OF STATES: THE POWER OF ETHNIC SEPARATISM AND INTERNATIONAL RESPONSES TO CREATING NEW STATES, REDRAWING INTERNATIONAL BORDERS, AND SALVAGING FAILED STATES Kamal S. Shehadi 1993 ] 8.1 principle of nationalities [CITIZENSHIP, NATIONALITY, AND ETHNICITY: RECONCILING COMPETING IDENTITIES T K Oommen 1997 ] [ON NATIONALITY David Miller 1995 ] 9 State succession [CLAIMS TO STATEHOOD IN INTERNATIONAL LAW Nii Lante Wallace-Bruce 1994 ] [THE CREATION OF STATES IN INTERNATIONAL LAW James Crawford 1979 ] [STATE PRACTICE REGARDING STATE SUCCESSION AND ISSUES OF RECOGNITION: THE PILOT PROJECT OF THE COUNCIL OF EUROPE 1999 ] 9.1 Recognition [GOVERNMENTAL ILLEGITIMACY Brad R. Roth 1999] [THE POWER OF LEGITIMACY AMONG NATIONS Thomas M. Franck 1990] 10 The state [GLOBAL LAW WITHOUT STATE Gunther Teubner editor (1997): Law – Customary law – the state – effectiveness and validity of law – rule of law – sociological jurisprudence – civil society] [GLOBALISM AND THE OBSOLESCENCE OF THE STATE Yeager Hudson editor (1999) – International cooperation – international relations ] [THE INDIVIDUAL, THE STATE, AND WORLD GOVERNMENT A. C. Ewing (1947) – the state – civil rights – democracy – international cooperation ] [LAW, THE STATE, AND THE INTERNATIONAL COMMUNITY James Brown Scott (1939) ] [THE STATE AND INTERNATIONAL RELATIONS John M. Hobson (2000). Political and sociological aspects of international relations. Role of the state.]

10.1 Legitimacy of governments 10.2 National state 10.3 People, constitutional law see also representative government and representation, and accountability 10.4 Public interest 10.5 Reason of state

RESEARCH . britannica 1. Bonham’s. . britannica 2. Magna carta. . britannica 3. Treaty of Westphalia. . britannica 4. Sovereignty. . britannica 5. Democracy in Athens. . britannica 6. Plato. . britannica 7. Aristotle. . britannica 8. English civil war. . britannica 9. Cromwell. . britannica 10. Locke. . britannica 11. Bodin. . britannica 12. Hobbes. . britannica 13. Montequieu. . britannica 14. French revolution. . britannica 15. American revolution. . britannica 16. Tomas Paine. . britannica. 17. Political Philosophy. T. H. Green.

. IO 47/1 139 (1993) . Armed conflicts linked to the disintegration of state structures. . ILC Third Report on State Responsibility (James Crawford, Special Rapporteur) 52nd Session (Geneva, 1 May – 9 June and 10 July – 18 August 2000), part. 40ff. (Integral obligations). . ILC Fifth Report on Reservations to Treaties (Alain Pellet, SR) 52nd Session (Id.). . Lost of sovereignty. International obligations to search for and arrest war criminals: Government failure in the former Yugoslavia?. 7 Duke J. of Comp. & Int’l. L. 411 7/2 (Spring 1997). . Defining aggression. Ferencz. AJIL 66/3 491 (1972). . After Bangladesh:The Law of Humanitarian Intervention by Military Force. Franck and Rodley. AJIL 67/2 275 (1973).

leads [] The institution of the supreme rule concerned with the basis of authority. Three traditions: 1) supreme rule derived from the power of the absolute ruler [autocratic, absolute subjectivity of the legitimacy of the supreme rule]; 2) supreme rule derived from the consent of the people [democratic, role of representation, majority/minority, and identity of the people, the citizen as individual and as collectivity, implications for the status of the democratic sovereign in international law ]; c) supreme rule derived from the juridical determination of legality [] [] Differentiating the effects of the process of the reconstruction of sovereignty between impact upon the state and impact upon the international system. What does, for instance, the international criminalization of aggression, as established in Nuremberg, do for the state system and for the international system?

Introduction international law under the imperatives of world order

Sovereignty’s dual function

11 Sovereignty is contested and critical, but remains defining for both the [A] interstate and [B] the global community systems. 12 The main reasons for these powerful antinomies are that sovereignty is [A] instrumental for the internal operation of the political system of the state, and [B] instrumental for authoritative international decisionmaking. I contend the observations and basic propositions underlying this dual function of sovereignty are well grounded in the practices of the international legal and political system, and in the contemporary political and constitutional patterns of both advanced and developing sovereign states.

The concept of sovereignty designates an institution of supreme rule which seems common to all politically organized peoples throughout history. Every people since the Gilgamesh’ Mesopotamian Kingdom of Uruk, in the 3rd millenium B. C. , to the Democratic Republic of the Congo in 2000 [n21.1999 ICJ Armed Activities in the Territory of the Congo, Order of 1 July 2000, para. ] concerned with the control, organization and uses of power, has also found a fundamental utility in institutionalizing various forms of the principle of the supreme rule. Quoting from Mountague Bernard’s historical account of the neutrality of Great Britain during the American Civil War, Henry Maine observes in one of his 1887 lectures on international law that by “sovereign state” it is meant “a community or number of persons permanently organized under a sovereign government of their own”, where “sovereign government” means “a government, however constituted, which exercises the power of making and enforcing law within a community, and is not itself subject to any superior government”. Exercise of power and absence of superior control, would thus “compose the notion of sovereignty and [be] essential to it” [n22. International Law by Henry Maine, Lecture III, The Avalon Project at the Yale Law School, ; Henry, Maine, INTERNATIONAL LAW; A SERIES OF LECTURES DELIVERED BEFORE THE UNIVERSITY OF CAMBRIDGE, 1887, New York: Holt, 1888. Compare Bryce, “The Nature of Sovereignty”, in his STUDIES IN HISTORY AND JURISPRUDENCE, II, 503-555 (1901); Raz, THE CONCEPT OF A LEGAL SYSTEM 5-11, 27-33, 34-43 (1980). ].

A remarkable aspect of this institution is that it seems to have emerged in every case as a result of an autonomous process, like an inherent trait of the organization of political power among people, and not as a transplant in a pattern of external expansion and influence from from one people to another. Territorial conquest in the past has not usually meant that sovereignty was established for the first time in that land, but rather the substitution, often violent, of the local territorial supreme rule structure by that of the occupant power. Ruling supremacy and the authority to govern over people, resources, and common issues, in a given territory, have been interrelated attributes of independent political systems. Political theories of the state and the political system have persistently focused on those attributes –ruling supremacy, authority to govern, political independence of the state or system in question– with no basic disagreement on their structural association. There have been however substantial differences on the sources, or on the bases of which such structure of ruling supremacy or sovereignty and authority to govern was, and had to be, constituted.

Generally, monarchical, absolutist and autocratic concepts of the political system, whether tribal, feudal or state like, found the sources of sovereignty in dynastical or kingship factors which were presented as bound with prerogatives dispensed by divine powers, administered by the corresponding churches and the clergy or bureaucracies of the supernatural, who held a decisive political influence before the advent of rational enlightenment and scientific understanding. In contemporary politics there persist some residual cases of such forms of state, but the new autocratic and totalitarian concepts of the political system, even if somewhat receding after the defeat of fascism in World War II and the dissolution of the Soviet state system in 1991, have substituted the divine or supernatural sources of authority by the values underlying military and communist party dictatorships.

Democratic theory of the state, since the 5th century Athens, B. C., has found the sources of sovereignty in the consent of the people. The process of achieving democracy has been hard, long, and bloody in history, and so it remains still in many regions of the world. The most influencial episodes in shaping the pattern of contemporary democracy are probably the English revolutions and civil wars of the 16th and 17th centuries, which culminated with the Bill of Rights of 1689; the French Revolution of 1789 which, though truncated by the Bonaparte’s regime, proclaimed the Declaration of the Rights of Man and put an end to absolute monarchies in France and Spain and many other European countries; and the American Declaration of Independence in 1776, a political prologue in fact to the adoption of the Constitution of the United States in 1789 by the Philadelphia Convention.

There are other, perhaps qualitative differences between these hallmarks of democracy, in their approaches to sovereignty. Probably one of the main ones stems from they way these patterns of democratic development have related to a third intellectual framework on the sources of the supreme rule. This third framework on the sources of sovereignty has been historically minoritarian, surely among other reasons because of the subtle and complex intellectual constructs it proposed, not readily amenable to practical, or ideological, simplifications. It was first spoused perhaps by the Pythagorean Circles in the late 6th century B. C., somewhat incorporated into the Stoic schools of the 5th century, and more throughly conceptualized by Plato in his writings on justice and government [n23. ]. It emphasized rather abstract notions of righteousness based on ethical concepts of the good, wisdom of judgment or reason, and knowledge of the truth [n24. political philosophies of the presocratics. And the political theory of the Stoics. Cornford. Plato’s Republic. ]. It was perhaps through the juristic strands of the Stoic schools that it became influencial among the ancient Rome jurists to given shape the Roman Republic’s particularly robust, if still primitive, concept of legal sovereignty. The concept was to persist in England through the judicial incorporation of Roman cannon law. English civil wars were dominated by the conflict for the control of the sovereign prerogative between Parliament and the Crown, but they had been preceded by another contest between them and common law courts [n25. v. Sovereign prerogative, struggle for the sovereign prerogative in England. Smith, CASES AND MATERIALS ON THE DEVELOPMENT OF LEGALS INSTITUTIONS 324-335 (1965); Holdsworth, IV HISTORY OF ENGLISH LAW 84ff. (1909); L. CONSTITUTIONAL ADJUDICATION 249-252 (1983) ]. In 1610, Judge Coke ruled in the Bonham’s case that, “when an act of Parliament is against common right or reason or repugnant or impossible to be performed, the common law will control it, and adjudge such act to be void” [n26.77 Eng. Rep. 646, 652DICATION 249-250; Plucknett, Bonham’s Case and Judicial Review, 40 HARVARD L. REV. 52-54 (1926) ]. The theory of judicial supremacy as a source of legal sovereignty was overruled in England by the High Court of Parliament [n27. City of London v. Wood, 88 Eng. Rep. 1592, 1602 (1702); ACL 39 ] but at the same time, at the turn of the 18th century, it passed on to the courts of the American Territories through the Calvin’s case of 1702. Professor Louis Fisher observes that, even if the Bonham’s case “provides inadequate support for the American concept of judicial review, it was accepted as good law and precedent by those who wanted to break with England” [n28. ACL 39].

The American Declaration of Independence is a historical preamble of the Constitution which is to establish in fact a precise juridical concept of sovereignty. The Federalist Papers were to examine and vigorously contend this juridical reconstruction of sovereignty by focusing on four aspects of the prerogative to govern. First, how the largest sovereign function transferred to the American people as a whole through the establishment of the Union constituted a safeguard “against domestic faction and insurrection” [n29. Federalist Paper 9 (Hamilton)]. Second, on how it could be divided, or shared among the Union and the States through the specification and enumeration of the powers granted by the Constitution [n210. Federalist Papers 15, 30 to 36]. Third, how it was structured and secured through the republican institutions by guaranteeing both separation and reciprocal constitutional controls [n211. Federalist Papers 39 to 44, 47-48, 51 (Madison)]. Fourth, by establishing the supremacy of the Constitution and providing the federal government, through a concurrent mechanism in which the States shared the sovereign treaty-making power of the Republic [n212.Federalist Paper 44 (Madison), 64 (Jay), 75 (Hamilton)]. Though a matter of controversy among constitutionalists, the juridical construction of sovereignty which placed its source directly in the supreme law of the land, can be derived from a textual interpretation of the Constitution itself by finding the normative coherence and determinacy of the relationship between the judicial power which extends “to all cases in law and equity, arising under this Constitution, the laws of the United States, and treaties which shall be made under their authority”, in Article 3, Section 2, clause 1, and the provisions, in Article 6, paragraph 2, that “this Constitution, and the laws which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding”. [n213. See Wechsler, Neutral Principles in Constitutional Law; and Marbury v. Madison, 5 U. S. (1 Cr.) 137 (1803). ACL 48-53. Ch. J. Marshall. “That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their happiness is the basis on which the whole American fabric has been erected”. [N214.ACL 51.] “This original and supreme will organizes the government”. [n214. ACL 51]. “The powers of the legislature are defined and limited. [ ] the Constitution controls any legislative act repugnant to it”. [n214. ACL 51]. “It is emphatically the province and the duty of the judicial department to say what the law is. [ ] So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case [ ], the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty”. [n215. ACL 52]. [n215. From a constitutional law perspective of the principle of juridical sovereignty, the Supreme Court’s rejection of the United States obligations under international law to suspend the execution of [two foreign nationals], in Breard and LaGrand, runs contrary to the the basic tenets of the principle, as read in the joint construction of Articles 3(2) and 6(2), and certainly the fundamental assumptions of the Marbury jurisprudence. This regardless of the factors of state responsibility which may be applicable to United States by international law.]

In McCulloch v. Maryland [n216. 17 U. S. (4 Wheat.) 315 (1819)], Ch. J. Marshall. Congress had passed legislation in 1816 to establish the Bank of the United States, a power not expressly granted by the Constitution, and that had to be derived from the implied powers of the coefficient clause # 18 of Article 1(3). When James W. McCulloch, the cashier of the Bank of the United States in Baltimore, refused to pay the tax which the State of Maryland was trying to impose on the Bank, as an entity not chartered by Maryland’s legislature, a legal constitutional dispute arose between Maryland and the United States which, when it reached the Supreme Court in 1819, was to provide Chief Justice Marshall the opportunity to define further the relationship between the national government and the states. “The constitution of our country, in its most interesting and vital parts, is to be considered; the conflicting powers of the government of the Union and of its members, as marked in that constitution, are to be discussed”. [n217. ACL 350]. The powers of the general government are not delegated by the states, as if these were the truly sovereigns, but by the people of the United States. “The government proceeds directly from the people”. And the Constitution, “when thus adopted, was of complete obligation, and bound the state sovereignties”. [n218. ACL 350-351]. “This is a government of enumerated powers”. ACL 351. It also has the power of making “all laws which shall be necessary and proper, for carrying into execution the foregoing powers”. [n218. ACL 352]. “The clause is placed among the powers of Congress, not among the limitations of those powers”. [n218.ACL 353.]

The juridical construction of sovereignty in the processes of constitutional development of Great Britain, France, and the United States more decisively, had the effect of providing the historical institution of the supreme rule with an objective legal texture and standard political system functions. I contend the process of constitutionalization of sovereignty is politically and normatively bound by the parallel evolution of judicial supremacy, in that this latter is instrumental for elevating the locus of sovereignty even over the contingent will of the constituent. A concomitant element of my proposition is that the constitutionalization of sovereignty would not be complete if the principle of a supreme rule would have been exclusively dependent upon the conditions of political representation. The tension between the functions of majoritarian democracy and the now abstract, objective principle of a juridical supreme rule, appears thus essential for the constitutionalization of sovereignty or, if we will, its legalization. However, in terms of the actual, descriptive pattern of constitutional development, as it is going to articulate the complexion of the sources of authoritative public decisionmaking in the political system of democracy, it may be accepted that the constitutionalization of sovereignty consists of a political moment of its own, which is not identical to its jurisdictional reconstruction. In other words, it may be accepted that the constitutionalization of sovereignty would have taken place in the first new nation, the Republic of United States of America, without the Marbury jurisprudence. Marbury, however, could not have happened without the background of the actual texture of the American Constitution as it was adopted by the Founders. There are significant elements of both logic and interpretational incidents in the Records of the Philadelphia Convention and in the exegesis of the constitutional plan in the Federalist Papers, which anticipate Marbury. There is also significant jurisprudence in federal and state courts anticipating the 1803 Marbury decision of the U. S. Supreme Court [n219. Hayburn’s Case, 2 Dall. 409 (1792); Hylton v. United States, 3 Dall. 171 (1796); Hollingsworth v. Virginia, 3 Dall. 378 (1798). Haines, THE AMERICAN DOCTRINE OF JUDICIAL SUPREMACY (1914), reports that in 1789 to 1802 eleven state judiciaries exercised judicial review over state statutes; see ACL 43-44 ]. Moreover, there where the constitutionalization of sovereignty remained shaped only by the political representative moment of democratic development, as it was the case in a number of European continental countries, the overall thrust of the constitutionalization and legalization of the supreme rule, and constitutional democracy itself, were tragically to fail. The most catastrophic failures were the Kerenski’s Republic in Russia [n220. ] and the Weimar Republic in Germany [n221. ]. But also the Third and Fourth Republics in France failed [n222. ], as it did the Republic in Spain [n223. ]. The concept of failure here is not meant to place the exclusive burden of responsibility on those political systems. Perhaps the forces of destruction were overwhelming, as we can see by the deadly controlling combination of extremist political ideologies. Yet the fact is that, when democracy was restored, with direct international intervention in Japan in 1945-46 [n224. I C L, Japan Index, at ], under direct international supervision in Italy in 1947-48 [n225. I C L, Italy Index, at ], in Western Germany in 1948-49 [n226. I C L, Germany Index, at ], or indirect international monitoring in Spain in 1977-78 [N227. I C L, Spain Index, at ], the renewed constitutionalization of sovereignty was institutionally linked this time around with an explicit establishment of the jurisdictional control of constitutional legality, a power checking structure over the political conditions of majoritarian democracy in the form of powerful Constitutional Courts [n228. Basic evidence of the power of the new constitutional courts ].

These three constitutional components of the redefinition of the power basis of the state’s political system are also essential for the new system of international law whose basic design is established after WWII, and that has been slowly but rather steadily evolving in both its configuration and complexion in this half-century. I focus on this question further on this part one in examining the international law function of sovereignty, and at various moments of parts two and three, respectively on the characteristics of the contemporary crisis of the state, and on the second reconstruction of sovereignty as the rules of the international jus cogens have become of direct application by the international community. I find useful, however, to pause here briefly to anticipate some explanations of what it may mean that these three elements of the redefinition of the power basis of the state are also essential for the system of international law. I’ll be synthetic in stating the basics of these links, as I am ellaborating on them later.

The first redefining effect of the constitutional reconstruction of sovereignty I have identified is the vertebration of the insterests of the people, the aggregated will of which constitutes the last, and by now the only legitimate, subjective basis of the historical sovereignty, and the goals, or value contents, of public policymaking, in the system of democracy. There is a robust corpus of rigorous literature on this subject in political science. Perhaps Robert Dahl’s latest published investigations could be a basic element of reference in this respect for anybody to pursue that intellectual journey, if found necessary at this point [n229. Dahl, ON DEMOCRACY, see especially section eight, “What Political Institutions Does Large-Scale Democracy Require?”, of part three on actual democracy, 85ff. (1998) ]. I propose to consider this effect of constitutional sovereignty essential for the new system of international law for three reasons, three decisive, qualitative reasons, I’d say. One reason is that, when the interests of the people become the general basis of national public policymaking in the democratic state, so do by extension these interests, articulated across nations, become, potentially at least in the first place, the basis of a democratic international political system: international public policy in the large global policy arenas of economics, environmental protection, peace and security or human rights and criminal justice, of which the new international law is instrumental, are bound to become also increasingly representative of the transnationally vertebrated interests of the peoples of the international community [n230. ]. Another reason is that the redefinition of national sovereignty on the basis of the sovereignty of the people changes the subjective complexion of the international personality of the state, of which sovereignty remains the defining outcome attribute [n231.Crawford]: the state may remain the fundamental or constitutive international legal person because its sovereignty is the sovereignty of its people [n232. the right of democratic governance under international law in this perspective, comp. Franck], which may conversely mean, as increasingly does in actual international practice, that the state may lose its sovereignty when its people is no longer sovereign, at least in such a manifest way as both its capacity for government and for conducting international relations become impaired [n233. How Yugoslavia lost its sovereigny, in THE KOSOVO CRISIS IN INTERNATIONAL LAW, and The Law of NATO Enforcement Action in Yugoslavia, and historical examples, from Germany and Japan in the 1940s to Iraq in the early 1990s, Indonesia in 1999 ]. Finally, a third powerful reason why the popular reconstruction of sovereignty is essential for international law lies in the fact that such an effect has turned out absolutely instrumental for the codification, development, implementation and incorporation of the international law of human rights. The three historical acts of popular sovereignty which put an end to the conceptual framework of dynastical sovereigns, and thus terminated the ancient regime forever –the 1689 English Bill of Rights, the 1776 American Declaration of Independence and the subsequent 1789 Constitution, and the French 1789 Universal Declaration of the Rights of Man– are national acts which provided the conceptual background, the historical imagination, of the most formidable forces of political change of our world: civil liberties and fundamental freedoms, and the right of self-determination. In so accomplishing, these revolutionary national acts were also the beginning of the end of the purely institutional, bureaucratic concept of statehood as the sole basis of the international persona.

The second redefining effect of the constitutional reconstruction of sovereignty –the standardization of the constitutional decisionmaking rules for operating the government, in American terms, or the state, in European terms– is generally of a procedural nature, and it should also be regarded as essential, indeed a necessary condition, a sine qua non, of the contemporary system of international law, because it determines the characteristics of how the state meets its structural requirements. Under international law the state retains its international personality because it fulfils two ‘passive’ or given requirements, population and territory, and because it is capable of exacuting two other ‘active’ or dynamic requirements, capacity for governing, and capacity for conducting international relations [n234. 1949 ICJ, Reparation for Injuries; 1933 Montevideo Convention on the Rights and Duties of States; RESTATEMENT (THIRD) ]. In terms of the popular reconstruction of sovereignty, internal or domestic government is now a far more complex operation, and one which is not severable from the status and the obligations of that particular state in the international system. And both status and obligations are functions of similarly complex patterns of practice concerning the three constitutional procedural principles of the system of international law, good faith, consent, and pacta sunt servanda [n235. 1969 Convention on the Law of Treaties; RESTATEMENT (THIRD)]

The third redefining effect of the constitutional reconstruction of sovereignty, whereby the basis of political authority are restablished in terms of the supremacy of the rule of law itself, appears more abstract, and therefore more obscure for purposes of common sense. The underlying concept is a persistent reference of the American jurisprudence, a simple political statement of which might well be John Adams’ dictum that “the very definition of a republic is an empire of laws, and not of men” [n236. Thoughts on Government c. 1776, in microform at The O. S. U. Main Libr.; JOHN ADAMS 1735-1826: CHRONOLOGY, DOCUMENTS, AND BIBLIOGRAPHY, H. F. Bremmer, editor (1967); and at A Hypertext on American History (G. M. Welling, Project Coordinator), ]. It is supposed to have been embodied also in the supremacy clause in Article VI, paragraph 2, of the American Constitution, which provides that “[t]his Constitution, and the Laws of the Unites States which shall be made in pursuance thereof, and all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land” [n237. Federalist Papers 27, 33, 34 (Hamilton), and 39, 44 (Madison) ]. The supremacy clause is generally recognized as one of the direct sources of the power of judicial review [n238. ACL 37-38]. Equivalent provisions have been incorporated in other contemporary constitutions [n239. Constitution of Germany, Arts. 28(1); Italy, Arts. 101(2), 134, 136, 139 (“the Republican form of the State may not be changed by way of Constitutional amendment”); Israel, Basic Law on Human Dignity and Liberty, Section 11; Japan, Preamble, paragraph 3, 76(3), 81, 98 (probably the closest in contemporary constitutional law in force to the supremacy clause in Article VI(2) of the U. S. Constitution; Portugal, Art. 2; South Africa, Preamble, para. 5, Section 1(c), “[the Republic of South Africa is [ ] founded on the] supremacy of the constitution and the rule of law”]; Spain, Preamble, Arts. 9(1), 117(1), 161, 163; Sweden, Ch. 1, Art. 1; Switzerland, Art. 5(1) ], though in some cases courts are explicitly denied the power to determine the constitutionality of legislative acts [n240. Constitution of the Netherlands, Art. 120, “The constitutionality of Acts of Parliament and treaties shall not be reviewed by the courts”] or that power may be restricted by law [n241.Constitution of Norway, Article 88(1)], whereas in others the constitutional review of legislative acts has been made almost mandatory as a condiction of its promulgation [n242. Constitution of Ireland, Art. 26(1.1)].

Variations of emphasis in constitutional instruments on the principle of the supremacy of the rule of law may not be very significant in the actual practice of strong democracies. For example, the Constitutions of the United States and Japan explicitly postulate their supremacy and the controlling role the judiciary plays in ensuring it, whereas the Constitutions of Canada, Denmark and Netherlands confer stronger roles to subjective institutions such as the monarchy and the church, and provide for more limited judicial intervention. The end result of the operation of these political systems is however quite similar as to the paramount position of the rule of law and its discharge under likewise common criteria of independence and objectivity, impartiality, equability and due process or procedural justice. Even the role of courts becomes increasingly comparable across constitutional democracies as a consequence of their relatively better position to deal with the growing complexity of conflicts, perhaps as a consequence also of their relatively more proportionate equidistance with respect to the contradictory sources of those conflicts. Factors outside the original scheme on the role of the judicial power, such as the territorial complexion of the political system, may end strengthening naturally the position of the courts as equidistant constitutional decisionmakers, as it has been the case with the Canadian and Australian Supreme Courts [242A.]. We are thus left with uncertainties as to what is then the meaning and the practical significance of the abstract principle of the rule of law, especially when we are trying to understand how does the ‘internal’ or constitutional function of sovereignty relate to its ‘external’ or international law function, and how does such an interrelationship work, given that both functions appear respectively central and instrumental for so perceptibly separated and different legal systems. But such uncertainties seem more influenced by the perceived differences in the comparative constitutional statement of the principle, than by the expectations of entitlements and responsibilities which, though not taken for granted even in strong democracies, are generally associated with the political system governed under the rule of law. Whereas constitutional differences should be construed as evidence of the flexibility with which the principle may be articulated and does evolve across political cultures, there are surely certain elements in it which are common to all. At the most basic level of its functions, that which is common may be considered the law itself, in the Austinian sense, “a general command of a sovereign addressed to his subjects”, where sovereign may also be understood as a legislative body [n243. John Austin, THE PROVINCE OF JURISPRUDENCE DETERMINED (1861, 1954); Raz, THE CONCEPT OF A LEGAL SYSTEM 5 (1980).]. Experience shows, however, that law may be expression of divides, and that it may encourage them too, in political societies.

Moreover, for obvious reasons related to the nature of this material at this time, diffusing these uncertainties must be provided now in a clear way, simple and succint: or else risk leaving here a fatal dark whole in the texture of analysis such that a critical part of its logic will result impaired and its purpose missed. I am sure that some of you have already in mind the solution, which demands from us simply to focus on these three instruments or levers of comprehension, or ‘epistemic hunches’ if you will. The first is the need for system. The second is that the rule of law, the core outcome of the constitutional reconstruction of sovereignty –its first reconstruction and also its first, internal, function– is what makes the system possible. And the third is that, once we have a system based on a universal institution, or at least universalizable –the rule of law– every system, municipal, national or constitutional, may relate coherently with each other, and may relate coherently above all, for our purposes in this discussion, with the system of international law.

The need for system is not a semantical construct [n243. For this distinction, compare Joseph Raz, THE CONCEPT OF A LEGAL SYSTEM (2nd edition, 1980), and Friedrich Kratochwil, RULES, NORMS, AND DECISIONS (1989)] [n244. ]

– instrument of popular sovereignty and normative, objective basis for the exercise of governmental authority – and the concept of a legal system – v. Austin, Hart, Kelsen– universality of the rule of law: procedural and substantive complexion – fundamental value – and normative articulation of state law and international law – Kelsen – and hierarchy in international law EJIL 8/4 – universal international law.

International law function

Let us consider now how do these three aspects of the constitutional function of sovereignty relate eventually to its international function, its function as an instrument for the relation among independent states, and later on how do they fare in the face of the powerful crises which are shattering the very conditions of independence of states.

In parallel development of the same process of the juridical determination of sovereign, in the Schooner Exchange v. McFaddon, 11 U. S. (7 Cr.) 116, INTL 1129-1131. And absolute sovereign immunity principle.

The actual meaning and the international sources of “absolute sovereign immunity”.

A look at the historical context: Westphalia. Summary of the Treaties. [] v. Gross, AJIL 42/1 20.

Evolution and change of Westphalia’s principles. [] v. Hershey, AJIL 6/1 30.

From Lotus to Nuremberg [ contemporary jurisprudence, like contemporary wars, a progression in the transformation of sovereignty from absolute state power to power under the rule of law.]

[Paradoxically, it is the transgression of sovereign state rights in every case what has prompted defensive responses in every case, which shifted the value neutral principles of sovereignty to value contents that entailed restraints on its exercise. ]

Crisis of the state and deconstruction of sovereignty

20 [ a patterns of the crisis of the state in international law, international security dimensions ] As the nation state undergoes its worst crisis ever in the post-WWII era, 21 highlighted by the simulatneous patterns of [A] failure, [B] disintegration, [C] creation and [D] merger of states, 22 the internal and external functions of sovereignty are experiencing a sea-change, and the principle has entered into an accelerated deconstructive phase.

[The four patterns of the contemporary crisis of the state] [The contemporary patterns and the systemic cources of the crisis of the state, the failure of the Westphalian system of sovereign states – and thus the failure of the jus publicum Europaeum (or of the europaisches volkerrecht) – with the wars of the twentieth century. The meaning of the loss of sovereignty by Germany – and Japan – forever, and its implications for the future of the state and sovereignty. ] [The continuing case of the loss of sovereignty by aggressor states: the cases of Iraq and Serbia established and compared ] [ The functional loss of sovereignty in relation to the four patterns of the contemporary crisis of the state ] [State failure ] [ ]

[As indicated above, the transgression of sovereign state rights has prompted defensive responses in every case shifting the value neutral principle of sovereignty to value contents which entailed growing restraints upon its exercise. In history, the process is illustrated by the patterns of the loss of sovereignty by aggressor states. In the post-historical global world now, the process is illustrated by the simultaneous pattern of juridification of state authority and the growing domain of international jurisdiction in a number of fields such as criminal justice, human rights, and economic relations. ] [Consider the process in history: the radical transformation on the standing of sovereignty underlying the Nuremberg jurisprudence ] [The erosion of sovereign state rights had started with the practices of the aggressor state as early as WWI, wnehn Germany’s armed forces occupied Belgium and Luxembourg, and Japanese forces invaded in turn China – to facilitate German attack on Kaio-Chau –, all three neural states, protected by the international law of neutrality. See Garner, Some Question of International Law in the European War.

From territorial to juridical sovereignty

30 Compounded with the material impact of the forces of globalization, the constitutional sources of the crisis of the state are normative and axiological. 31 Originated in the transnational dynamics of a core set of imperative principles of international law [ a aggression and the prohibition of aggression, right of democratic governance and fundamental human rights and civil liberties, including equal justice under law], a universal juridical sovereignty is imposing common standards upon nation states, 32 and thus substituting the fragmented territorial bases of sovereignty by the value bases of fundamental rights and obligations of the global rule of law [ b legitimacy test: adherence and consistency of these principles in contemporary international legislation and practice ].

Conclusion: reconstructing sovereignty in the shadow of the forces of entropy

40 However, since imperative international law stems largely from the process of the rule of law within the system of the state, 41 the shift to universal juridical sovereignty is inclusionary of basic state values, 42and it is meant to work, if it makes it after the decisive, potentially devastating clashes which are to come with the neo-Westphalian world disorder, through a jurisdictional reconstruction of the sovereignty basis of the nation state.

[31a] to focus on three sets of imperative principles in the emerging complexion of universal juridical sovereignty: the prohibition of aggression, the right of democratic governance and fundamental human rights, and the right of equal justice under law. [32a] I demonstrate the adherence and pedigree of these principles in contemporary international legislation, jurisprudence, and practice, and provide evidence of how they are reconstructing conventional state sovereignty.

[42a][10a] The reconstruction of sovereignty emerges as the most complex and dangerous challenge of the next decades for governments and experts.

DEVELOPMENTS NOTES

Sovereignty, the essential attribute of independent statehood, is vigorously contested by international practice, yet remains a defining value of national interests worldwide. It is subject of growing discontent among scholars and professionals, but without it the conceptual architecture of the world order, and the functional structure it designates, would collapse. It persistently leads peoples to war, though it provides the decisive guarantee of the longer range commitment of nations to peace. As the nation state undergoes the most ferocious crisis ever, the reconstruction of sovereignty in that process emerges as one of the most necessary, complex, and dangerous challenges for governments and experts. International practice offers compelling evidence that the reconfigurative phase of the reconstruction of sovereignty is taking place as a matter of fact, and anarchically, at all levels of world politics. Contemporary international security crises, triggered by the linkage of internal and external conflict conditions, are demonstration tests. That is the area of action with which this paper is concerned, but I also find consistent demonstration tests in the perceived effects of economic, technological, and environmental globalization, and the related patterns of complex interdependence. As more states fail, or disintegrate, new states keep emerging, and others move to closer integration The phase of normative and policy conceptualization of the reconstruction of sovereignty remains, however, extremely elusive. as these four patterns of international security behavior indicate:

1] the incapacity of the UNSC to discharge effectively its obligations (as some of the most serious threats to peace are nonexistents for the Security Council), the impossibility for establishing enforceable criteria for international intervention (punctuated by the self- exclusion of China, Russia and the U. S., the largest armed forces, from the standby arrangements for peacekeeping), 2] the practical collapse of the system of international arms control regimes [including conventional arms, as Russia violates systematically the CFE agreements with the consent of its OSCE partners, and nuclear arms, as the U. S. rejection of the CTBT, and the nuclear arms race in Asia, which will be followed soon in East Asia and the Middle East, throw into disarray the NPT regime] 3] persistent and widespread noncompliance with, and nonenforcement of, fundamental human rights provisions which are essential for international security, 4] the unsurmountable impasse on the reform of the UN and the deadlock over key international instruments [such as the ILC Articles on State Responsibility, and the Code of Offenses against Peace and Security, even the final establishment of the ICC; the virtual impossibility to reform Article 34 of the ICJ Statute in order to have a more adequate international legal regime on jus standi];

DEVELOPMENT NOTES II

1 The reconstruction of sovereignty is taking place as an objective function of the crisis of the state in contemporary world politics. 2 The crisis of the state is manifesting through four simultaneous institutional processes: failure, disintegration, creation of new states, and relative integration of states in larger supranational entities. 3 The tension of trend in those institutional processes compounds with the objective patterns of globalization, moved by transnational interactions, increasing the entropic tendencies in the system and weakening the capacity for global governance. 4 The crisis of the state is particularly negative for purposes of efficient international law development since the state is the basic authoritative decisiomaking and implementation unit of international law rules. 5 The tension of principles of international law and their underlying values are very related to the crisis of the state, and therefore international law should be instrumental for a coherent reconstruction of the fundamental attributes of the state in such a way that the political system of the state becomes consistent with the requirements of global governance. 6 The mechanisms of such instrumentation of international law are provided by a basic set of universal imperative rules, substantive and procedural, which induce consistency in the interstate system by making of it in turn the constitutional political structure of a world order founded on basic common values. 7 The reform of the operational rules of the U. N. Charter, concerning the Security Council and the other key organs of the system, in order to strengthen global decisionmaking capacity, will be accompanied by an amended integration of the purposes and the principles of the Organization in Articles 1, 2, to reflect and vertebrate the imperatives of democracy and self-government, human rights and fundamental freedoms, as the constitutive core of the world public order. 8 The explicit incorporation of general international law into the system of the Charter will strengthen the authoritative basis of international policy decisionmaking through the institutions of the Organization. 9 In the absence of decisive steps in the direction of this process of normative integration, the crisis of the state is bound to deepen and widen, the entropic pressures associated with the neo-Westphalian trends will dominate international politics, the U. N. will become increasingly superstructural, inefficient and irrelevant, large regional and global wars will be inevitable.

ACTION CONCEPT Examine the four institutional processes of the crisis of the state, providing evidence, through the analysis of cases, of how the elements of the crisis, in each of those processes, are related to the values which constitute the imperative rules of general international law, and that will be incorporated, as enforcement principles, into the system of the Charter.

DEVELOPMENT NOTES III

. global value integration: what is, how is it operating, why, what for, effects [effects on the interstate and state systems, effects on state sovereignty]

[context discussion] [global value integration and change, and diversity] [dynamics of integration and dynamics of diversity] [and complexity: complexity, a function of the relations between change, number of components and their interactions under conditions of integration and conditions of differentiation]

. the state in the international political system and in the system of international law . imperative international law

Principle: maintenance of international peace and security Rule: prohibition of aggression Rule development: prohibition of internal aggression

II Principle: Self-determination of peoples Rule: prohibition of the establishment or maintenance by force of colonial domination Principle development: self-government, right of democratic governance

III Principle: Safeguarding the human being Rule: prohibition of slavery, genocide, apartheid Rule development: prohibition of war crimes, crimes against humanity Principle development: Respect for human rights and fundamental freedoms

IV Principle: Preservation of the human environment Rule: Prohibition of massive pollution of atmosphere, sea and land

Against the background of powerful transnational forces and interactions, operating as the material levers of globalization, the state as the basic institutional structure for authoritative decisionmaking in contemporary world politics undergoes four simultaneous trends in different degrees: failure, disintegration or dissolution, establishment or emergence, and integration or merger. These four trends shape the process of the recomposition of the sovereignty attribute inherent in the structural function of the state.

DEVELOPMENT NOTES IV

12 13 14 15 16 17 Part 1 Sovereignty’s dual function Sovereignty – concept, historical and conventional functions, and conflictive characteristics of the principleas it is interpreted and practiced now – defining for the interstate and the global community systems – instrumental for the internal operation of the political system of the state – instrumental for authoritative international decisionmaking.

18 19 20 21 Part 2 Crisis of the state and deconstruction of sovereignty Crisis of the nation state: material forces – patterns of failure, disintegration, creation, and merger – the trilateral superpower structure, not free from these patterns – internal and external functions of sovereignty undergoing structural change – first phase of this process, a deconstructive phase – evidence of the crisis of the state in the field of international security – cases.

22 23 24 25 26 27 28 Part 3 From territorial to juridical sovreignty Crisis of the nation state: normative forces – transnational interactions of values and imperative principles of international law – the process of universal juridical sovereignty evidenced via three principle regimes: prohibition of aggression, democratic governance, fundamental human rights and equal justice – pedigree, adherence, and coherence of these principle regimes in international legislation, jurisprudence, and state practice – second phase of the crisis of sovereignty: the reconstrictive phase – effects of the reconstructive phase: effect 1: basic common values and axiological globalization: the fundamentals of home rule in diversity – effect 2: territoriality substituted juridicity as basis of sovereignty – global rule of law and territoriality of the law

29 30 1 2 3 Part IV The reconstructing sovereignty and the forces of entropy Universal juridical sovereignty, inclusionary of basic state values – jurisdictional and political reconstruction of state sovereignty – the weltgrundnorm and the global structure of democracy through home rule: selfdetermination closes its circle – the viability of the weltgrundnorm threatened by the neo-Westphalian trend – the neo-Westphalian trend and the juridical dynamics of entropy: the triple-vector thrust of the neo-Westphalian juridical entropics: global corporate anarchy (juridical feudalism), violent exclusionary local fragmentation, territorial and ethnic (juridical tribal primordialism), and functional neonazi reorientation of the political system of the state (juridical functional fascism ()) – the reconstruction of sovereignty interval against that background of entropic forces, the most dangerous and complex challenge of the next decades, for peoples and leaders, governments and experts.

Notes

INTRODUCTION SOVEREIGNTY’S DUAL FUNCTION CRISIS OF THE STATE AND DECONSTRUCTION OF SOVEREIGNTY FROM TERRITORIAL TO JURIDICAL SOVEREIGNTY CONCLUSION: RECONSTRUCTING SOVEREIGNTY IN THE SHADOW OF THE FORCES OF ENTROPY

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International Military Tribunal at Nuremberg, Judgment and Sentences: Judgment. Legal positivism and the Nuremberg Judgment. Nuremberg revisited: The Tadic case. The Nuremberg Trial against the major war criminals and international law. The Nuremberg Trial and international law. The Nuremberg Trial and the international law of the future.

. Nuremberg Revisited: The Tadic Case. Jose E. Alvarez. EJIL 7/2 245 (1996).

. OBLIGATIONS ERGA OMNES AND INTERNATIONAL CRIMES. De Hoogh (1996). . On the conception of sovereignty. David George Ritchie. 1 ANNALS OF THE AMERICAN ACADEMY OF POLITICAL AND SOCIAL SCIENCE, 3, 385-411 (1891).

For a discussion on the legislative and juridical origins of historical sovereignty in ancient political systems, see id. at 386-388. Somewhat agreeing with Henry Maine [EARLY HISTORY OF INSTITUTIONS 380], Clark [PRACTICAL JURISPRUDENCE: A COMMENT ON AUSTIN 167-168], AND William Markby [ELEMENTS OF LAW 24], against some apparent main tenets of Austin’s concept of sovereignty [VI LECTURES ON JURISPRUDENCE I, 226 (1879)], Ritchie concludes that

“[l]aw is older than sovereignty; primitive law is the custom the tribe, and the earliest type of sovereignty is exhibited, apart from leadership in battle, in pronouncing judgments, not in making laws. [ ] The legislative activity of the sovereign comes very late in the process of political development; and the great historical interest of the writings of Bentham and Austin is just that they are contemporary with, and supply a theoretical justification for, the quickening of legislative activity in England”. [387]

“It is essential [ ] to distinguish between [ ] (1) the nominal sovereign, (2) the legal, and (3) the political”. Cf. Locke, TREATISE ON CIVIL GOVERNMENT ch. Xiii, 149, 151. [393]

. On the Current Trend towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law. Antonio Cassese. EJIL 9/1 2 (1998).

. Peoples, Territorialism, and Boundaries. Malcolm N. Shaw. EJIL 8/3 478 (1997). . PERMANENT SOVEREIGNTY OVER NATURAL RESOURCES IN INTERNATIONAL LAW: PRINCIPLES AND PRACTICE. Hossain and Chowdhury, eds. (1984). . Permanent Sovereignty over Natural Resources. UNGAR 1803 (xvii), of Dec.14, 1962. . Pinochet Case. L. Rf. Aceves, Liberalism and International Legal Scholarship: The Pinochet Case and the Move Toward a Universal System of Transnational Law Litigation, HILJ 41/1 (Winter 2000). . PRINCIPLES OF INTERNATIONAL LAW. Kelsen (1952) (revised and edited by R. W. Tucker (1988)) . Principles of International Law Concerning Friendly Relations and Cooperation Among States. Houbben. AJIL 61/3 705 (1967). . Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal. ILC. . Punishment of War Criminals by the United Nations. Clyde Eagleton. AJIL 37/3 495 (1943).

. QUASI-STATES: SOVEREIGNTY, INTERNATIONAL RELATIONS, AND THE THIRD WORLD. Robert H. Jackson (1990). . QUESTIONING SOVEREIGNTY: LAW, STATE, AND NATION IN THE EUROPEAN COMMONWEALTH. Neil McCormick (1999).

. Recognition of States: The Collapse of Yugoslavia and the Soviet Union. Rich. EJIL 4/1. . Recognition of States. Turk. EJIL 4/1. [and Annexes 1, 2, 3] . Recognition of States: Some Reflections on Doctrine and Practice. Herbet W. Briggs. AJIL 43/1 113 (1949). . Reservations to Treaties. Text of the Preliminary Conclusions of the International Law Commission on reservations to normative multilateral treaties including human rights treaties, adopted at its forty-ninth session, 1997. ILC. . . Revising the Draft Articles on State Responsibility. James Crawford. 10/2 435 (1999). See, Symposium: State Responsibility, EJIL 10/2 339ff. (1999). . Revolutionary Creation of Norms of International Law. J. L. Kunz. AJIL 41/1 119 (1947). . RULES, NORMS, AND DECISIONS. F. V. Kratochwil (1989).

. Self-Determination. Emerson. AJIL 65/3 459 (1971). . Self-Determination, Territorial Integrity, and the African State System. Crawford Young. CONFLICT RESOLUTION IN AFRICA (Deng and Zartman, eds., 1991). . Some Questions as to the Place of the Individual in the International Law of the Future. Clyde Eagleton. AJIL 37/4 642 (1943). . Some Questions of International Law in the European War. Garner. AJIL 9/1 72 (1915). . Soviet Concepts of the State, International Law and Sovereignty. Mintauts Chakste. AJIL 43/1 21 (1949). . State Responsibility – A Symposium. Abi-Saab, Dominice, Gaja, Dupuy, Chinkin, Gattini, Lowe, Gray, Pellet, Crawford. EJIL 10/2 339ff. (1999). . Sovereigns as Defendants. Nathan Wolfman. AJIL 4/2 373 (1910). . Sovereign prerogative, struggle for the sovereign prerogative in England. L. CONSTITUTIONAL ADJUDICATION 249-252 (1983). Cf. Joseph Smith, CASES AND MATERIALS ON THE DEVELOPMENT OF LEGAL INSTITUTIONS 324-335 (1965). Holdsworth, HISTORY OF ENGLISH LAW IV, 84ff. (1909). Plucknet, Bonham’s Case and Judicial Review, 40 HARVARD LAW REVIEW 52-54 (1926). . Sovereign prerogative and constitutionalism. L. Cf. McIlwain. . Sovereignty and Inquality. Benedict Kingsbury. EJIL 9/4 599 (1998). . SOVEREIGNTY THROUGH INTERDEPENDENCE. Harry G. Gelber (1997). . SUBJECTS AND SOVEREIGNS: THE GRAND CONTROVERSY OVER LEGAL SOVEREIGNTY IN STUART ENGLAND. Weston and Greenberg (1981). . State Responsibility, Draft Articles. ILC. .

. The Admission of New States to the International Community. Christian Hillgruber. EJIL 9/3 491 (1998). . The Brookings Institution. . THE CHANGING STRUCTURE OF INTERNATIONAL LAW. Friedmann (1964). . The Changing Structure of International Law Revisited – A Symposium: By Way of Introduction. Charles Leben. EJIL 8/3 399 (1997). . The Charter and the Constitution. Edwin Borchard. AJIL 39/4 767 (1945). . The Common Foreign and Security Policy: An Emerging New Voice in International Politics?. Helene Sjursen. ARENA Working Paper 34 (December 15, 1999). See Globalisation and Democracy. . THE CONCEPT OF A LEGAL SYSTEM. Joseph Raz (2nd edition, 1980).

5-11 13-14 27-33 34-43 93 95 99-100 105-108

Raz identifies the four basic problems of legal theory, from an analytical standpoint – the problems of existence, identity, structure, and contents; to focus on the first three in his study.

[i. Austin’s theory. “Law, a general command of a sovereign addressed to his subjects” [5] [The Province of Jurisprudence Determined ]

[100] Austin’s solution to the problem of identity is seen to rest on the combination of two concepts: validity chains and sovereignty. Kelsen accepts the first, and thereby also the principle of origin, and rejects the second, substituting his own concept of a basic norm. [Comp. “validity chains” in relation to “legitimacy” [i. e., as formulated by Franck, and more generally by Weber]] [On the “basic norm” substituting “sovereignty”, and “supremacy of law” or “rule of law” as sovereign, juridification – an objectivation – of sovereignty. And convergence between the political process of objectivation of sovereignty, through democratic representation, and the juridical process of objectivation of sovereignty through the supremacy of the rule of law via constitutional control of legality by courts, supreme court, constitutional courts ]

. THE CREATION OF STATES IN INTERNATIONAL LAW. Crawford (1979). . The Draft Declaration on Rights and Duties of States. Hans Kelsen. AJIL 44/2 259 (1950). . The Degrees of Self-Determination in the United Nations Era. Kirgis, Jr. AJIL 88/2 304 (1994). . THE DYNAMICS OF SECESSION. Bartkus (1999). . The Eclipse of the State? Reflections on Stateness in an Era of Globalization. Peter Evans. WP 50/1 62-87 (1997). . The Emerging Right to Democratic Governance. Franck. AJIL 86/1 46 (1992). . The experience of the International Criminal Tribunals for the former Yugoslavia and for Rwanda. Paul Tavernier. INTL. REV. OF THE RED CROSS 605-621 (November 1 1997). . The Failed State and International Law. Daniel Thurer. INTL. REV. OF THE RED CROSS No. 836 731-761 (1999). . THE FEDERALIST PAPERS. Clinton Rossiter, editor (1961).

Writing on the Union as a safeguard against domestic faction and insurrection, in Federalist Paper 9, Alexander Hamilton first raised the question of “national sovereignty” by reference to the relation between the proposed new government and the States. “The proposed Constitution”, he writes, so far from implying an abolition of the State governments, makes them constituent parts of the national sovereignty, by allowing them a direct representation in the Senate, and leaves in their possession certain exclusive and very important portions of sovereign power”. Id., 44.

In Federalist Paper 15, Hamilton turns again on one of his favorite topics, the insufficiency of the Confederation to preserve the Union of the States, to raise the question of how it “is in the nature of sovereign power an impatience of control that disposes those who are invested with the exercise of it to look with an evil eye upon all external attempts to restrain or direct its operations”. Id., 79.

Other aspect of the “nature of sovereignty” discussed by Hamilton, later on, in Federalist Paper 81, precisely on the distribution of the authority of the judiciary, concerns his observation that “it is in the nature of sovereignty not to be amenable to the suit of an individual without its consent [italics in the original]. This is the general sense and the general practice of mankind”. Id., 455. An interesting observation for purposes of its contrast with the process of reconstruction of sovereignty in the second half of the 20th century.

And the sovereignty of states:

Concerning the general power of taxation, Federalist Papers 30-36, at 164 [FP31]; at 168-169 [FP32, “concurrent authority the necessary result of a divided sovereignty”].

The conformity of the plan to republican principles: Madison shows how misleading the concept of republic may be, and finds that the republic which the constitutional plan is projecting will have as its distinctive trait its character as “a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices [ ] for a limited period, or during good behavior”. [FP39] Id., 209.

Powers of the Convention to form a mixed government: at 217-218 [FP40] Powers conferred by the Constitution: at 237 [FP42]. Restrictions on the authority of the several states: and the supremacy clause in Article 6(2) of the Constitution, at 254 [FP44].

. THE FOUNDATIONS OF SOVEREIGNTY, AND OTHER ESSAYS. Harold J. Laski (1921). The foundations of sovereignty.- The problem of administrative areas.- The responsibility of the state in England.- The personality of associations.- The early history of the corporation in England.- The theory of popular sovereignty.- The pluralistic state. ] . The ‘International Community’: Facing the Challenge of Globalization. Bruno Simma and Andreas L. Paulus. EJIL 9/2 266 (1998). . The International Law of the Future: Postulates, Principles, and Proposals. AJIL 38/2 Supplement (1944). Postulates for the international law of the future. Id., 54. 1 The States of the world form a community, and the protection and advancement of the common interests of their peoples require effective organization of the Community of States. 2 The law of the Community of States is international law. The development of an adequate system of international law depends upon continuous collaboration by States to promote the common welfare of all peoples and to maintain just and peaceful relations between all States. 3 The conduct of each State in its relations with other States and with the Community of States is subject to international law, and the sovereignty of a State is subject to the limitations of international law. 4 Any failure by a State to carry out its obligations under international law is a matter of concern to the Community of States. 5 Any use of force or any threat to use force by a State in its relations with another State is a matter of concern to the Community of States. 6 The maintenance of just and peaceful relations between States requires orderly procedures by which international situations can be re-adjusted as need arises.

In the Comment on Postulate 3, the restraining role contemplated for international law is rather limited: “Generally, within the realm of its internal affairs, each State may exercise its powers without restraint by international law”. A view which has been substantially modified by the process of codification and development of international law, and by the actual practice of states since 1944. As a matter of fact, the Nuremberg jurisprudence also entailed a fundamental correction of this view.

. The Kosovo Crisis in International Law. L. . The Law of the Nuremberg Trial. Quincy Wright. AJIL 41/1 38 (1947). . The Legal Effect of Recognition. Philip Marshal Brown. AJIL 44/4 617 (1950). . The Legal Nature and Punishment of Criminal Acts of Violence Contrary to the Laws of War. George Manner. AJIL 37/3 407 (1943). . The Legal Status of Germany According to the Declaration of Berlin. Hans Kelsen. AJIL 39/3 518 (1945). . The Meaning and the Range of the Norm Pacta Sunt Servanda. Josef L. Kunz. AJIL 39/2 180 (1945). . The Nature of Sovereignty. Bryce, STUDIES IN HISTORY AND JURISPRUDENCE II (1901). [n22] . THE NEW SOVEREIGNTY: COMPLIANCE WITH INTERNATIONAL REGULATORY AGREEMENTS. Chayes and Chayes (1995). [Treaties.- Compliance.- Sovereignty] . The Nuremberg Trial Against the Major War Criminals and International Law. Hans Ehard. AJIL 43/2 223 (1949). . The Nuremberg Trial and International Law. George A. Finch. AJIL 41/1 20 (1947). . The Nuremberg Trial and the International Law of the Future. F. B. Schick. AJIL 41/4 770 (1947). . The Opinions of the Badinter Arbitration Committee: A Second Breath for the Self-Determination of Peoples. Alain Pellet. EJIL 3/1 178 (1992). . THE PARADOX OF CONSENSUALISM. Elias and Lim (1998). . The Peace of Westphalia, 1648-1948. Leo Gross. AJIL 42/1 20 (1948). . The Problem of State Succession and the Identity of States under International Law. Matthew Craven. EJIL 9/1 142 (1998). . The ‘Republic of Kosova’ (1989-1998) and the Resolution of Ethno-Sparatist Conflict: Rethinking ‘Sovereignty’ in the Post-Cold War Era. March and Sil. The C. H. Browne Center for International Politics, University of Pennsylvania, Working Paper Series #99- 01. . The Rule of Law and the Disintegration of the International Society. Schwarzenberger. AJIL 33/1 56 (1939). . THE SOVIET DOCTRINE OF SOVEREIGNTY (THE SO-CALLED BREZHNEV DOCTRINE). Charles T. Baroch (1970).

. The State as a Conceptual Variable. J. P. Nettle. WORLD POLITICS 20/4 559 (1968). Nettl’s mis en scene of his celebrated rumination on the state is one of the most interesting pieces of intelectual evidence of some of the fundamental contradictions or tensions perhaps concerning the nature and functions of sovereignty. See in particular how he identifies the United States and Britain as the sources of two decisive nonstatist traditions. There is some conventional wisdom which he is following here. It is probably not very strong or sound in itself. Consider the ongoing debate on whether Hobbes or Locke were the strongest intellectual sources of the Founding Fathers. According to Professor Schrock, an authority on this matter, it was in fact Hobbes the ultimate inspiration, not only of Hamilton, but also of Madison and generally across the most illustrated spectrum of the Founders present in the Philadelphia Convention. Hobbes is on the other hand the English political philosopher par excellence. Moreover, the ide that there is a real cognitive contradiction between Hobbes and the four other greatest and most influencial British (Nettl has not got this right) political philosophers, Locke, Hume, Bentham, and John Stuart Mill, is by now largely dismissed.

If this is the situation at level of the intellectual discourse, the reality in terms of theactual political experience of the British and American political systems cannot be more demolishing with respect to the weak foundations of the conventional wisdom. Of all European nations, Britain is the one with less international commitments undertaken, specifically commitments which were meant to bind or restrain the nation’s sovereignty: a tradition which has carried out into its contemporary reluctant involvement in the European integration process. It would not be accurate to consider without qualifications United States as the most advanced epitome of that tradition today, especially qualifications which must take into account historical contexts. Yet generally American isolationism, which has been, and remains in its present functional manifestations, materially possible, somewhat like the British splendid isolation, because of its resources, capabilities, and geographical coordinates, is still historically its strongest tradition. A tradition which has three prominent, decisive political instruments, which act both as sources and outcome – like sovereignty itself: the ideology of nationalism; the legal culture and system of absolute sovereignty, which makes of it an abstract, objective institution by linking democracy, or the sovereignty of the people, with the supremacy of the rule of law, perfectly consistent in the American juridical tradition since the Schooner Exchange in 1812; and the foreign policy principle of manifest destiny, a subtle, changing lever for balancing unilateralism and commitments, the mix of assertion and policies of independence and the acts of interdependence.

This is just a note of course in the process of providing an accurate identification of where do we stand in relation to the nature and the functions of sovereignty in terms of the internal and the external dimensions of the political system, of the state and of the interstate relations. Let us take a look at how Nettle conducts that mis en scene:

The concept of state was no “in vogue in the social sciences” in the late sixties [559]. Talcott Parsons, for instance, had eliminated it as a meaningful instruments for purposes of political system analysis, and substituted in its place “a sort of maximization of coercive power” – in Nettl’s review of the issue –, that was actually the central coercive function of the political system [560; Parsons, The Political Aspect of Social Structure and Process, in VARIETIES OF POLITICAL THEORY (David Easton, editor (1966)). According to Nettl, two intellectual processes had converged into this dismissal. One was the marginalization of sovereignty, which had begun some thirty years earlier and had turned by now into a “dead duck” [561. Cf. Watkins, THE STATE AS CONCEPT OF POLITICAL SCIENCE (1934)]. The other was the increasing unrelatedness between state and nation, “the historical slot with which its development has been most closely associated” [560-561. The rule of “nonnation states” had now become dominant with “the entry of the third world onto the stage” of world politics ]. Observing then that “conceptual changes are both ideologically and geographically conditioned” [561], Nettle offers then two “national factor” influences into this development. One is the “statelessness of the American social science”, which “coincides with the relative statelessness of the United States”. The other is “the English tradition of political and social theory”, free from “any native theory of the state until Harold Laski or perhaps MacIver some thirty or forty years ago”, compelling evidence, we must presume, of the fact “that England has been the stateless society par excellence“ [561- 562].

Beyond this entry into the matter there is another problem, perhaps more formidable. Namely, that in the dismissal of the state, or of sovereignty, what we have been left with is a set of propositions whereby the state is actually depicted in fact as the leviathan which these libertarian gentlemen wanted to avoid. There seems to be a problem in understanding:

- the relationship between state and governance, - between state and the public domain, - between such an internal configuration of the authority structure of the political system and the sources of authority – what another British philosopher, T. H. Green, called the bases of political obligation, - and between the internal and the international function of the state.

. The State between Fragmentation and Globalization. Serge Sur. EJIL 8/3 421 (1997). . THE STRUGGLE FOR SOVEREIGNTY IN ENGLAND. George L. Mosse (1950). . The Structure of Change in International Law or Is There a Hierarchy of Norms in International Law?. J. H. H. Weiler and Andreas L. Paulus. EJIL 8/4 545 (1997). . The Theory of the Independence and Equality of States. Philip Marshall Brown. AJIL 9/2 305 (1915). . The Waning of the Sovereign State: Towards a New Paradigm for International Law?. Christoph Schreuer. EJIL 4/4 447 (1993). . Transfer of Sovereignty Over Indonesia. Homer G. Angelo. AJIL 44/3 569 (1950). . United Nations: Charter of the United Nations. AJIL 39/3 Supplement 190-229 (1945). . United Nations Law. Oscar Schachter. AJIL 88/1 1 (1994). . United States-China-Great Britain-Soviet Union: Unconditional Surrender of Japan (September 1 1945). AJIL 39/4 Supplement 264 (1946). . United States-France-Germany-Great Britain-Soviet Union: Unconditional Surrender of German and Italian Forces at Caserta (May 2 1945). AJIL 39/3 Supplement 168-169 (1945). . United States-France-Germany-Great Britain-Soviet Union: Unconditional Surrender of German Forces at Rheims (May 8 1945). AJIL 39/3 Supplement 169-170 (1945). . United States-France-Germany-Great Britain-Soviet Union: Unconditional Surrender of German Forces at Berlin (May 9 1945). AJIL 39/3 Supplement 170-171 (1945). . United States-France-Great Britain-Soviet Union: Agreement for the Prosecution of the Major War Criminals of the European Axis (August 8 1945). AJIL 39/4 Supplement 257 (1946). . United States-France-Great Britain-Soviet Union: Declaration Regarding the Defeat of Germany and the Assumption of Supreme Authority with Respect to Germany and Supplementary Statements (June 5 1945). AJIL 39/3 Supplement 171-178 (1945). . United States: Report to the President from Justice Robert H. Jackson, Chief of Counsel for the United States in the Prosecution of Axis War Criminals. AJIL 39/3 Supplement 178-190 (1945). . Universal international law. Charney. AJIL 87/4 529 (1995). . U. S. Responses to Self-Determination Movements. Report from a Roundtable Held in Conjunction with the Policy Planning Staff of the U. S. Department of State. Carley (1997). . War Crimes in Yugoslavia and the Development of International Law. Meron. AJIL 88/1 78 (1994). . Whither the International Community?. Georges Abi-Saab. EJIL 9/2 248 (1998). . World Court Digest.