Showing papers on "Sovereignty published in 1977"

The Foundations of Sovereignty and Other Essays

Abstract: 1. The Foundations of Sovereignty 2. The Problem of Administrative Areas 3. The Responsibility of the State in England 4. The Personality of Associations 5. The Early History of the Corporation in England 6. The Theory of Popular Sovereignty 7. The Pluralistic State 8. The Basis of Vicarious Liability 9. The Political Ideas of James I

Do We Need a Theory of the State

Abstract: My Question is not whether we need a theoretical understanding of the political process in modern states, but whether we need a theory of the state in the grand manner of the acknowledged ‘great’ theories, ranging in modern times from, say, Bodin and Hobbes to Hegel and the nineteenth century juristic theories of sovereignty, and on to the less ‘great’, but in intention equally grand, theories of Green and Bosanquet and such twentieth century thinkers as Barker and Lindsay and MacIver.

Antagonistic Cooperation: Territorial and Ethnic Communities

Abstract: The dominant characteristic of the organization of political authority everywhere can be best described as territory-bound: political power is primarily exercised, sought, and opposed within geographically determined areas. The inhabited land surface of our planet has been divided into over 150 sovereign territorial states of various sizes and shapes; furthermore, increasingly larger chunks of oceans and seas-and the air above them-are being fenced off to form exclusive economic domains of the coastal states. As of October 1977 there were 149 member-states of the United Nations; that number, however, included the two nonsovereign federal components of the Soviet Union (Ukraine and Byelorussia); on the other hand, four sovereign states either chose or were forced to stay out of the United Nations (Switzerland, North Korea, South Korea, and Taiwan).

National Sovereignty and National Power in European Institutions

Abstract: A frequently voiced democratic catch phrase is ‘one man, one vote; one vote, one value’. Equality of representation, or proportional representation, is often taken as a guarantee that the democratic criterion is met. Whereas proportional representation may ensure ‘one man, one vote’, however, it is dubious whether it will also ensure ‘one vote, one value’. The latter component is defined here as voting power, and an analytical procedure is outlined which investigates the distribution of power. Application of the procedure to three EEC institutions—the Council of Ministers, the European Assembly, and the European Parliament—indicates clear disparities between the distributions of votes and of power, which have implications for national sovereignty.

Autointerpretation, Competence, and the Continuing Validity of Article 2(7) of the UN Charter

Abstract: With the failure of the United Nations to control the use of force by states to the degree that many had wished for, the attention of many commenators shifted to what was hoped would be more fertile ground—the protection of human rights, self-determination, and other areas in which the organization might play a supranational role. In discussing the development of the supranational aspect of the organization, attention is invariably directed to Article 2(7) of the Charter which is, of course, the current symbol of sovereignty. Since most visionaries are frustrated by the concept of sovereignty, it is not surprising that this article has received little sympathy on the part of many who are more concerned with ends than means. Yet it is doubtful whether the concept may be dismissed summarily and, since it plays such a key role in so many of the allegedly developing fields of international law, one would do well to consider how Article 2(7), properly interpreted, affects the legal assumption on which supranationalism is based.

Bangladesh in 1976: Struggle for Survival as an Independent State

Abstract: POLITICS IN BANGLADESH in 1976 became involved in entanglements from which the ruling military elite found it hard to extract itself. The questions involved were many. How does a small state maintain its sovereignty when a giant neighbor uses its superior military, economic, and political power in an effort to make it a client or "dependent" state? What does a fairly popular and efficient military elite do on the issue of transfer of power to political leaders through an election when the sovereignty of the country is at stake with pressures on the border and subversion inside by armed gangs trained and sheltered by the big neighbor? Should an election be held when even the leaders of prominent political parties themselves are divided on the holding of early elections and when several underground political parties have been trying to bring about "Scientific Socialism" or "Peoples Democratic Revolution" through armed struggle? Should Bangladesh wait for democracy until the military elite has "cleaned up the mess," or should the military rulers lay down "the rules of the political game" to safeguard the "national interest" as perceived by them and arrange a sort of "guided democracy" under their umpireship? These are the questions which were of utmost significance, salience, and indicative of future performance of the political process of Bangladesh in 1976.

States' Rights and States' Roles: Permutations of "Sovereignty" in National League of Cities v. Usery

Abstract: A share of the blame for what follows belongs to Mr. Justice Brennan, whose twenty years of distinguished labor on behalf of our constitutional system-on behalf, I should say, of the men, women, and children whose rights and concerns that system serves-this journal justly celebrates. It was the Justice who, by his striking and powerful dissent in National League of Cities v. Usery (NLC),1 first made me think there must be even more to that case than meets the eye. His opinion is remarkable for its depth of feeling, its sense of occasion, of foreboding, of fatal and momentous choice. The eloquence is disciplined and surgical-not so sweepingly flamboyant as, say, the impassioned Frankfurter's, 2 but as stirring. The opinion speaks with a controlled intensity that at first seems disconsonant with both the immediate impact of the Court's decision (denial of congressional minimum-wage protection to state and municipal employees) and its broader doctrinal significance (recognition of some state governmental immunity from congressional regulation under the commerce clause). Both developments, to be sure, are important. But it seems unlikely that the immediate impact taken by itself-if, say, it had resulted from a disputable statutory

The state of economic integration in north west africa south of the sahara: the emergence of the economic community of west african states (ecowas)

Abstract: The purpose of this paper is to examine to what extent African regional cooperation can be of assistance in building economic foundations that would provide viability for the new states and to what degree this would generate self-sufficiency, integrated economies, decolonization, and a reduction of the dependence resulting from inherited institutional structures. Because political unions tend to be short-lived, it seems clear that the organizing units must be based on the principles of maintaining sovereignty of national entities and non-interference in the internal affairs of states. Nevertheless, since all modern African states aspire toward political union, it is necessary to ask the question of to what extent and under which conditions can regional cooperation be a step in that direction.

The Spratly Islands and the Law of the Sea: Dangerous Ground for Asian Peace

Abstract: SINCE THE END of World War II, as it has become more practical to use the resources in and under the sea, more and more restrictions have been placed on who may exploit them. Beginning with the acceptance of a nation's continental shelf as a "natural prolongation of a nation's 'land area'," coastal states have gradually come to assert more and more control over the seas-that is, over what used to be the traditional three miles from their shores. The doctrine of continental shelf proved unacceptable to many nations that have extremely narrow continental shelves, from which the ocean bottom slopes rapidly downward into deep trenches. The doctrine of continental shelf did not permit a state to exert control over the sea bottom below 200 meters. As a result, within eight years of the 1945 Truman Proclamation on the Continental Shelf, many Latin American nations began to formulate their own definitions of national sovereignty over the oceans by proclaiming a 200-mile territorial sea limit as an alternative principle. For 15 years, these positions existed side by side. In 1968, however, when the Soviet Union attempted to gain acceptance for a twelve-mile territorial sea limit, with an attendant fishery jurisdiction, many Latin American, African, and Asian nations which had not previously committed themselves on this issue began to support the 200-mile limit.

Recent Developments in the Law of Sovereign Immunity in the United Kingdom

Abstract: The last eighteen months have witnessed very significant changes in the interpretation and application of the doctrine of sovereign immunity by the English Courts. These changes are important not only as matters of historical and practical interest, but because they address many of the fundamental policy questions in a manner that has been unnecessary in U.S. practice because of the way in which the Tate Letter 1 has channelled the development of the law along certain set patterns. Until very recently the English Courts had followed a doctrine of absolute immunity irrespective of claims made against foreign sovereigns. The two most celebrated authorities 2 in favor of the absolute theory of immunity were The Parlement Belge and The Porto Alexandre. In The Parlement Belge 3 the Court of Appeal, overruling Sir Robert Phillimore as judge of first instance,4 had granted immunity to a mail packet owned by the King of the Belgians and officered by commissioned officers of the Belgian Navy. Referring to the "absolute independence of every sovereign authority" the Court of Appeal spoke of immunity of "the public property of any state which is destined to public use." 5 The Porto Alexandre6 concerned a vessel owned by the Portuguese Government and used for the carriage of freight. The Portugese Government claimed immunity in an action for salvage charges (even though the cargo owners entered unconditional appearance) and were successful both before Hill J. and in the Court of Appeal. The principle of absolute immunity appeared to have been confirmed subsequently on many occasions, although more clearly in respect of actions in personam than actions in rem. The distinction in English law between actions in personam and in rem was irrelevant during the period of absolute immunity; was crucial during the recent period of transition; and, as we shall see, appears once again to be losing its significance. So far

The Approach of the Chinese Communists to the Study of International Law, State Sovereignty and the International System

Abstract: The attitudes of Chinese Communist legal writers and political theorists towards international law, their conception of its functions, and their interpretation of the meanings of the key terms are predictably different from, and often opposed to, those of writers in the western tradition Such differences existed before the establishment of the People's Republic of China, and they became more pronounced with the Chinese Communists' adoption of Marxism-Leninism as their official state ideology The divergence has become increasingly centred on the concept of sovereignty, and on the assumptions as to its nature and its relationship to international law

Racism and International Relations

Abstract: The paper deals with racism based on colour as a factor in international relations. White racism has created a vertical schism in the international system as well as in several national subsystems. The revolt of the non-white peoples against white racism, both at the systemic and at the subsystemic level has led to a global race conflict which threatens to undermine the stability of the international system. Neither the ‘class theory’ nor the ‘caste theory’ explains the social stratification represented by contemporary colour racism; it must be regarded as an independent sociological category. One solution to the problem of global racism lies in a structural reorganization of the economic relations between the white and the non-white peoples, along with the promotion of global communication with effective feedback across the colour line. It is also necessary to substitute the new paradigm of world order for the old paradigm of national sovereignty.

Permanent Sovereignty over Natural Resources as a Corner-stone for International Economic Rights and Duties

Abstract: After the UN General Assembly had, on 14 December 1960, officially rung out the colonial era by adopting the Declaration on the Granting of Independence to Colonial Countries and Peoples (Resolution 1514 (XV)) with a convincing majority (89 to 0 with 9 abstentions), the new States of the third world rapidly succeeded in pitting their numerical superiority in the General Assembly against the political and economic power of the industrialised world. This made it possible for the UN system – which dates back to 1945 and the structure of which the new States had not, or had hardly, been able to influence – to be adjusted to their specific needs, particularly in the vital fields of trade and industry. Thus, they contributed by their majority in the UN Assembly to the setting up in 1964 of the United Nations Conference on Trade and Development (UNCTAD) and in 1966 of the United Nations Industrial Development Organisation (UNIDO) as organs of the General Assembly.

The Concept of Political Penetration

Abstract: Political penetration is a broad organizing rubric subsuming processes associated with the formation of new post-colonial states.1 It is an heuristic concept aggregating that ensemble of processes by which the political-administrative-juridical centre of a new state (1) establishes an effective and authoritative central presence throughout its geographical and sectoral peripheries, and (2) acquires a capacity for the extraction and mobilization of resources to implement its policies and pursue its goals, however these may be determined. In both historical and comparative perspective these processes are an integral part of the more all-embracing concept of ‘state-formation’.2 The latter, however, includes all of those processes by which both external sovereignty (i.e. independence vis-a-vis the new state’s international environment) is maximized and internal sovereignty (i.e. supremacy vis-a-vis its internal environment) is established. Although the two dimensions are empirically inseparable, due to the interpenetration of external and internal forces and influences, the emphasis in this volume is upon the creation of ‘internal’ sovereignty in new states, with reference where appropriate to how the prevailing international system may condition or inhibit that process.

A Just Cause

Abstract: By the middle of the thirteenth century Christian writers were generally in agreement that the just cause for a war must be defensive and their views prevail today. It is just to defend one’s country, laws and traditional way of life, just to try to recover property unlawfully taken by another, perhaps even just to enforce by physical means a properly delivered judicial sentence. It is not just to wage a war of aggrandisement or of conversion. This principle, we shall see, applied to the crusade no less than to any war, but in the first century of the movement, when the just cause was still a subject of discussion, other justifications for crusading were being put forward. St Augustine’s definition of just violence, that it avenged injuries, presupposed a much less passive attitude on the part of the just than was later to be acceptable, especially in the notion of vengeance, which haunted canon lawyers until c. 1200, after which it seems gradually to have been dropped, and in a wide interpretation of the injuries to be avenged, which could include any violation of righteousness, God’s laws or Christian doctrine. As late as the middle of the thirteenth century Hostiensis seems to have believed that Christendom had an intrinsic right to extend its sovereignty over all those who did not recognise the rule of the Roman Church or Roman Empire.

International Relations and Human Rights

Abstract: Human rights have always been an acute ideological issue. The peaceful coexistence of states with different social systems does not imply any relaxation of ideological struggle; but this struggle has to be carried on within a definite framework, without slander or interference in the domestic affairs of other states. Otherwise, it will undermine international detente, which is incompatible with any spread of suspicion, mistrust, or hostility in relations among nations. Detente implies mutual respect for the sovereignty and the laws and customs of states.

The Constitutional State of the Nineteenth Century: An Elementary Conceptual Portrait:

Abstract: Many sociologists are currently interested in the contemporary impact of state activities upon the social process at large; but in coming to terms with this topic are hampered by decades of neglect of the state as a topic in standard sociological literature In forming an elementary institutional picture of the modern state, they can gain from some acquaintance with literature in the fields of public law and the history of political institutions Utilizing some of this literature, the author draws a conceptual protrait of the nineteenth-century state (to be used as a baseline for work on contemporary state/society relations) focused on the following topics: the plurality of states and the meaning of sovereignty; the unitary nature of the state; some of its specifically `modern' institutional traits; its relation to law; some modalities and issues of the political process in the nineteenth-century state

Iraq's external relations 1921–26

Abstract: From the beginning of the mandate in Iraq the shaping of Iraq's external relations with her Middle Eastern neighbours and, after the Lausanne Conference, with the international world at large as well, was a delicate matter for British policy-making. Its delicacy sprang from a variety of reasons. They can briefly be classified. First Iraq's own endeavours to establish diplomatic links with her brethren in dar al-Islam, and her claim of international status or, at least, the satisfaction of amour propre; second the necessity for the British to solve problems arising from external situations that affected Iraq such as the (anti-Hashimite) caliphate movement among Indian Moslems, the Turkish menace to Mosul, the French suspicion about the motives of Britain's Middle Eastern policy and, finally, the disturbance of the Middle East by the Wahabi movement led by Ibn Sa'ud; third Britain's strong imperial interests in safeguarding the acquired strategic and economic assets against any future interference, be it by the Arabs or her imperial rivals at large. Owing to this last overriding British concern the shaping of Iraq's external relations, i.e. the partial transfer of external sovereignty to indigenous institutions in the sphere of diplomatic negotiations and international law such as diplomatic recognition, tended, on the whole, to be judged more by imperial calculation than by the provisions of the mandate concept. For instance, in 1925, when peace was concluded with Turkey (over Mosul), the Middle East department at the colonial office happened to discuss the recognition of the Iraq Government by the United States.' In accordance with British imperial interests the department deemed it an indispensable American duty to acknowledge the Palestine mandate first before recognising Iraq as a state. On the surface such conditions imposed on Iraq's diplomatic recognition by foreign powers implied the logical stipulation that whoever recognised a product of the mandate concept should also approve of the concept wherever it was worked. But, logic apart, politically, such conditions stemmed from the imperial notion that Iraq was an inextricable part of the strategic whole of the British Middle East. In other words, in an imperial context, the purpose of making U.S. recognition of Iraq conditional upon prior acknowledgement of the British mandate in Palestine was to consolidate the political security of the strategically important trans-desert motor and air route from the Mediterranean via Amman to Baghdad and the Persian Gulf. Complementary to the British conception of the Middle East as a strategic whole, there emerged from the concessions made to Faisal's plea for international status the concept of a British-controlled Middle East as a diplomatic unity. Thus, at the Cairo Conference in March 1921, Faisal was given the right to establish diplomatic relations with the ruler of the Pusht-Ikuh and Ibn Sa'ud of Nejd,2 whose foreign relations with the outside world were solely conducted by Britain. Further, from 1922 onwards, officials of the Middle East department began to ventilate the idea of diplomatically modelling Iraq after the dominions3 which, as is known, constituted a pluralism within the diplomatic unity of the British Empire.4 However, the concept of Iraq as

The Making and Unmaking of Constitutions-some Reflections on the Process

Abstract: The first approach is directed towards the elaboration of an institutional framework which more effectively corresponds to the political style of the regime in power. Such an approach is regarded as the 'instrumental' approach to constitution making and does not envisage the constitution to be an eternal instrument embodying the highest values and aspirations of the people. There is a measure of impermanency in such instruments as their lifespan is often limited to the duration of the political regime in power. They provide the means by which those who had captured power can more effectively organize and exercise power.

American Friendship for China and the Shantung Question at the Washington Conference

Abstract: IOLLOWING the Paris Peace conference, the Shantung dispute between Japan and China disturbed world leaders who sought to stabilize international relations in the Far East and to develop greater cooperation among the industrial powers. Secretary of State Charles Evans Hughes tried initially to isolate the Shantung issue from the other complex diplomatic questions and to settle the matter prior to the Washington conference. This proved to be impossible. Hughes was only technically correct in maintaining that the "Shantung settlement lay outside the Conference" and he later admitted that "the success of the Conference hung upon this settlement."' Hughes had also favored direct SinoJapanese negotiations with a minimum of United States involvement. It was, therefore, ironic that the state department, and especially Hughes, subsequently assumed a major role in resolving the disagreement. Several scholars have noted this,2 but they have not seen that, contrary to Hughes' expectations, American friendship for China exerted significant influence on the actual terms of the settlement. During the past two decades, historical scholarship has tended to assail the popular image of the United States as the special benefactor of China and ardent defender of the Open Door. As part of their critical examination of the myths associated with American involvement in the Far East, scholars have pointed out that the United States generally ignored the China market, actually cooperated with the other imperial powers in despoiling China, and acquiesced in numerous assaults on Chinese sovereignty and self-determination. Their analysis provides a

The Palestine Liberation Organization in the United Nations: Implications for International Law and Relations*

Abstract: The end of the Second World War seemed to signal to many observers the onset of a new era of international relations and international law. The appearance of former colonial entities as independent and sovereign political units led both diplomats and academicians to divine a new world order for international relations. At the same time the consequent significant increase in the number of political actors in the international system changed not only its complexion but also its manner of interaction. It appears that there are still further developments in the offing whose full significance cannot as yet be fully documented. One aspect, however, which we can examine is the increasing importance of the transnational actor in international forums. Our intention in this paper is to examine several features of this development in international relations, law and organization as evidenced by the continually increasing participation of the Palestine Liberation Organization (PLO) in the chambers of the United Nations.

The Concept of Free Seas: Shaping Modern Maritime Policy within a Vector of Historical Influence

Abstract: Lawmaking is a complex political activity. In the international system, law is shaped and reshaped mainly by the governments of states. Governmental policies in turn are often influenced by domestic, transnational, and international factors. Which of these combine as prime movers or stand as dependent variables is likely to vary with each political situation. When new law emerges, it may be said to be a result of complex influences and forces or, as has been said aptly, vectors of force.1 An analysis of the concept of free seas, undertaken with a view toward emphasizing the political underpinnings of the concept, reveals a study in conflicts and compromises. Within this concept a politics of tension is to be seen. The very principle of freedom of the seas reflects tensions at play. It responds to sporadic exercises of tension and acts independently of it. One view which may be taken is that the formation of the concept of a territorial sea was but a reaction to the freedom of the seas concept with coastal state rights emerging after basic conflicts were resolved. Another is that sovereignty its recognition, maintenance, and expansion was the key factor responsible for shaping the historical perspective behind territorial waters. The analysis which follows will show that both the politics of freedom and the concept of sovereignty have shaped and continue to shape the freedom of the seas as well as of territorial waters. Because modern thinking reflects both views it has oftentimes led to confusion and difficulty in pursuing permanent resolutions to conflicts.