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In Western doctrine interpretation of unlimited, indivisible, inalienable sovereignty from the end of the 19 century, is criticized because there is more or fewer restrictions on the power of any state, especially a democratic and legal state, in which state power is limited by human rights, by a positive law, not only domestic but also international (Burles, 2016 pp. 239–254).
Analysis
The confrontation between the socialist and capitalist camps in the world leads to the fact that questions of sovereignty are becoming a subject of active research not only within the framework of the general theory of law and constitutional law but also within the framework of international legal doctrine (Peters, 2009, pp. 513–544). In the framework of international legal doctrine, there is a final refusal to understand sovereignty as absolute unlimited freedom of action. However, this refusal leads not so much to the restriction of state sovereignty, but rather to the restriction of certain actions on the part of a sovereign state. Such restrictions are a consequence of the existence of international law itself as an objectively necessary form of interstate interaction, as well as the state's right to self-restraint of its sovereign rights.
Attempts to oppose the international law to state sovereignty are unproductive because these two phenomena mutually enrich each other and mutually provide for their existence and development (Acharya, 2007 pp. 274–296). A number of factors of social, political and socioeconomic development revealed during the study undoubtedly testify to the intensification of interstate interaction, changes in the spheres of competence of international and national legal orders, however, these factors do not give grounds for assumptions about the decline of state sovereignty (Lenzerini, 2005 pp. 155–190).
The interpretations of sovereignty in the international legal sense in a sense differ from his understanding of the general theory of state and law, although they are based on general theoretical constructions. Thus, from the general theoretical standpoint, sovereignty presupposes the sovereignty of the state on its territory-this is the internal aspect of sovereignty, and independence from any other state in both internal and external affairs in the latter case, the external aspect of sovereignty is manifested. Sovereignty in the international legal sense covers a part of the internal sovereignty and external sovereignty and is shown in the above independence of the state from other states (Sweetser, 2009 549–555).
Since the sixteenth century the understanding of sovereignty as a requirement generated not so much by the state itself as by the interstate system, has become established. "Within its borders (which, however, must be clearly defined and legitimized at the level of the interstate system), the state has the right to pursue any policy that it considers reasonable to adopt any laws that it considers necessary, and no one, either individuals or groups, or intra-state structures cannot refuse to execute them (Lake, 2003 pp. 303–323). Sovereignty in international relations, sociologists, assumes that no other state has the right to claim, directly or indirectly, the powers of this state, carried out by it within its borders since such an attempt would mean an attempt on its sovereignty. In the international legal sense, sovereignty requires recognition of the legitimacy of mutual claims of each of the states entering the interstate system on the part of the others (Lenzerini, 2005 pp. 155–190).
Having defined the borders of the states of Europe, the Westphalian world became the starting point for all subsequent international treaties and treaties, up to the French revolution of the late 18th century. And the rules of law laid down in these two documents are relevant in our time. Thus, at the turn of the 19-20 centuries, in international law, sovereignty was treated as the absolute right of the state to solve all internal issues, regardless of the will of others, and to enter into all sorts of agreements with other states (Peters, 2009 pp. 513–544). At the same time, without mutual recognition of state sovereignty, international communication would be objectively impossible (Agnew, 2005 pp. 437–461).
Background to the statement in the doctrine of international law of ideas about state sovereignty allows us to identify some methodological features of its study in international law. These features are caused by the fact that international law is mainly interested in relations between states. The form of legal expression of sovereignty, as well as its bearers, is not the subject of analysis in international law since sovereignty in the international legal sense is identified with the state (Peters, 2009 pp. 513–544). From a methodological point of view, the question of the relationship between sovereignty and international law is important. How compatible are these two phenomena? After all, international law is a right that, in a sense, is over a sovereign state, a law that binds a sovereign state. Is not the very essence of sovereignty lost as independence, sovereignty?
Answering these questions, some scientists (A. Ferris, G. Kelzen, and J. Brierly) came to deny the importance of sovereignty, to the conclusions that this is an outdated concept, which should be abandoned in favour of a more neutral notion - the internal competence of the state. Sovereignty in the international legal sense means legal power or competence of the state, limited and capable of being limited only by international law (Cohen, 2004, 1–24). Sociologists argued that "the idea of sovereignty is incompatible with the idea of a legal inter-social system ... any legal order has competence only in areas that can not affect the solidarity of the whole, never having a guarantee that these areas will remain inviolable (Peters, 2009 pp. 513–544). Other scientists were also believing that sovereignty is incompatible with international law, on the contrary, denied international law (Lenzerini, 2005 pp. 155–190). In some cases, the design of international law was tried to replace the notion of international morality. For example, Willoughby believed that states could enter into agreements that create moral or political, but not legal obligations (Krasner, 1999).
It seems that the view that declares sovereignty and international law as mutually exclusive concepts is vulnerable (Etzioni, 2006 pp. 71–85). Thus, sovereignty presupposes the independence of the state from other states. Such an understanding of it implies a) the fact of the existence of other states, b) the fact of the existence of the relations of the state and other states. Relations between subjects are objectively built on certain principles. In relations between states, such principles can be either the coordination of interests or their imposition by some states by others. In the first case, it will be a question of the existence of a certain regulator, which resulted from the coordination of the interests of sovereign states - that is, international law. In the second case, international law does not appear, and one state is dependent on the other, that is, there is no sovereignty (Peters, 2009 pp. 513–544).
International law does not deny sovereignty but gives it new qualitative characteristics - so sovereignty becomes in international law a universal principle regulating the relations between independent states. International law is one of the means of establishing sovereignty. In turn, by the principle of sovereignty, the specificity of international law is revealed in comparison with the domestic law (Grey, and Patel, 2015 pp. 431–444).
The compatibility of international law and sovereignty is proved historically - international law emerged as a systemic formation in connection with the emergence of sovereign national states in Europe and the strengthening of interaction between them. Thus, "the sovereignty of subjects of international law ... does not exclude international legal regulation, but determines the number of features of this regulation and its boundaries. In determining these characteristics, representatives of different concepts differently solve the question of the subject establishing these features and boundaries (Etzioni, 2006 pp. 71–85). Thus, from the standpoint of the primacy of sovereignty over international law, the sovereign state itself establishes the limits of international legal regulation. From the primacy of international law (Kelsen, Ferris), the state legal order is part of the international legal order, within the whole, and not part, the definition of the competence of the state takes place, and therefore its sovereignty is determined. It seems that the correlation between international and national law, and, consequently, the limits of international legal regulation and sovereignty are determined by the nature of the regulated relations, as well as by specific goals and objectives of regulation (Grey, and Patel, 2015 pp. 431–444). Of course, there are issues that are "at the junction" of the domestic political and foreign policy spheres of public relations, but their share does not allow us to speak about the potential for the emergence of any conflict of competence between international and national law and order (Agnew, 2005 pp. 437–461).
International law proceeds from the presumption of independence of sovereign states and their sovereignty. A sovereign state has the right to invoke its sovereignty, but not to challenge the obligations for it of international legal norms in general, but to challenge such requirements of international law that do not correspond to the above features of international legal regulation. The development of the principle of the international responsibility of the state in no way leads to the abolition of the principle of sovereignty. Moreover, it is international law at the moment that can provide mechanisms for effective protection of sovereignty (Osiander, 2001 pp. 251–287).
Conclusion
Thus, from the time of the appearance of the first constitutions to the present time, state sovereignty is considered to be one of the states recognised in the doctrine of constitutional law as a sign of the state, which has been verbally reflected in some constitutions. Given that the main idea of constitutionalism is the idea of limiting state power, this circumstance seems somewhat paradoxical (Agnew, 2005 pp. 437–461). Indeed, the existence of numerous and increasing restrictions on the power of the state raises doubts about the existence of state sovereignty as a phenomenon and, accordingly, in the validity of using the term denoting it in its traditional interpretation. The complexity of the problem is because there are a wide variety of approaches to understanding state sovereignty with modern political doctrine and legal norms. The modern interpretation of the sovereignty of a legal democratic state is incompatible with its understanding of the quality of the unlimited power of the state. Today, a sovereign state is inevitably limited by human rights: not only the rights of individuals, but also its power to swing its fists ends where the noses (rights) of people begin to be protected, and cannot arbitrarily be violated by sovereignty. Only such protection, and in proportion to these goals, the strength and power of state power can be justified. If the state can do this and at the same time maintains its strength as a guarantor of human rights, law and order and stability, then such a state is present in sovereignty (as well as legal democratic character), despite the fact that it is limited.
References
Peters, A. (2009) ‘Humanity as the A and Ω of sovereignty’, European Journal of International Law, 20(3), pp. 513–544. doi: 10.1093/ejil/chp026.
Krasner, S. D. (1999) ‘Sovereignty: Organized Hypocrisy’, Princeton University Press, p. Chapter 1. doi: 10.1215/0961754X-8-2-422.
Cohen, J. L. (2004) ‘Whose Sovereignty? Empire Versus International Law’, Ethics " International Affairs, 18(3), pp. 1–24. doi: 10.1111/j.1747-7093.2004.tb00474.x.
Agnew, J. (2005) ‘Sovereignty regimes: Territoriality and state authority in contemporary world politics’, Annals of the Association of American Geographers, 95(2), pp. 437–461. doi: 10.1111/j.1467-8306.2005.00468.x.
Sweetser, C. E. (2009) ‘Humanity as the A and ?? of sovereignty: Four replies to Anne Peters’, European Journal of International Law, pp. 549–555. doi: 10.1093/ejil/chp062.
Lake, D. A. (2003) ‘The new sovereignty in international relations’, International Studies Review, 5(3), pp. 303–323. doi: 10.1046/j.1079-1760.2003.00503001.x.
Grey, S. and Patel, R. (2015) ‘Food sovereignty as decolonisation: some contributions from Indigenous movements to food system and development politics', Agriculture and Human Values, 32(3), pp. 431–444. doi: 10.1007/s10460-014-9548-9.
Acharya, A. (2007) ‘State sovereignty after 9/11: Disorganised hypocrisy’, Political Studies, 55(2), pp. 274–296. doi: 10.1111/j.1467-9248.2007.00664.x.
Burles, R. (2016) ‘Exception and governmentality in the critique of sovereignty’, Security Dialogue, 47(3), pp. 239–254. doi: 10.1177/0967010615620972.
Etzioni, A. (2006) ‘Sovereignty as responsibility’, Orbis, 50(1), pp. 71–85. doi: 10.1016/j.orbis.2005.10.006.
Lenzerini, F. (2005) ‘Sovereignty Revisited: International Law and Parallel Sovereignty of Indigenous Peoples’, Texas International Law Journal, 42(April), pp. 155–190. Available at: http://www.tilj.org/content/journal/42/num1/Lenzerini155.pdf.
Agnew, J. (2005) ‘Sovereignty Regimes : Territoriality and State Authority in Contemporary World Politics', Annals of the Association of American Geographers, 95(2), pp. 437–461. doi: 10.1111/j.1467-8306.2005.00468.x.
Peters, A. (2009) ‘Humanity as the A and O of Sovereignty’, European Journal of International Law, 20(3), pp. 513–544. doi: 10.1093/ejil/chp026.
Peters, A. (2009) ‘Humanity as the Alpha and Omega of sovereignty’, European Journal of International Law, 20(3), pp. 513–544. doi: 10.1093/ejil/chp026.
Osiander, A. (2001) ‘Sovereignty, International Relations, and the Westphalian Myth’, International Organization, 55(2), pp. 251–287. doi: 10.1162/00208180151140577.
