Abstract
State sovereignty depreciates not so much in its external manifestations, but in its essence. Today, it is no longer the main point of reference for the assessment of a state’s activeness in international relations and not the only superior value protected by that state. The aims of a state policy have also been based on other paradigms such as prosperity, security, or individual rights. The effects of the change can also be seen in the range of judicial control over a state’s activities. It does not only concern the loss of a state’s sovereignty at the judicial level in the process of the European integration, which was described in the text. There are more areas like that. For example, the sphere of a state’s immunity that is anchored in the foundation of sovereignty is shrinking. The process is progressing in a systemic way, even against the will of states, as a result of the change of the character of international relations and the evolution of the whole international law from the coordinating order into the order of values. Even the protection of a state’s activity typical of ‘iure imperii’ erodes in the collision with them. Admittedly, at the moment we can find this mainly in the postulates of the doctrine, but the message encroaches upon a real dimension—states begin to judge other states’ imperial acts that breach human rights or civilizational values, including those which are peremptory. Moreover, the decline of sovereignty favors general judicial control from outside, i.e. from the international level. In this sphere, we observe a process of developing international tribunals to which states transfer their competence in specified fields forever, as well as the powers that formerly remained within the domain of absolute sovereignty. And they respect their judgments. In the economic field, these are non-national courts of arbitration. Their judgments exercise respect for the principle of ‘res judicata’. In the field of imperial acts, these are permanent international tribunals. The International Criminal Court is one of them. It has the jurisdiction to prosecute the most serious international crimes, i.e. aggression, genocide, crimes against humanity, and war crimes. The court has the jurisdiction to lift the immunity of a head of state and punish the so-called ‘white-collar’ individuals who are convicted of committing these crimes. It does not only supplement, but also substitutes for the sovereign state judiciary in case it refuses to adjudicate.
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- 1.
Separation of powers is the political model for the governance of a democratic state. Power is typically divided between a legislature, an executive and a judiciary.
- 2.
There are: conclusion of treaties, maintaining of diplomatic relations, participation in international organisations, right to participation in peaceful settlement of disputes, right to self-defence.
- 3.
Shown by the ratification by 40 African states of the African Charter of Human Rights, by the Soviet Union’s withdrawal in 1989 of its reservations to six human right treaties according to competences to international courts *************MEANING UNCLEAR*************** (e.g. the convention on torture, convention on racial discrimination, convention on genocide), or evolution of OSCEE.
- 4.
Constitutional Court of Germany fund, that opening of state sovereignty on acts of supranational power is admissible only when is not a simply exercise of them. They should be a realization of the idea of self-determination of the nation.
- 5.
SEE: Article. 3. para. 1 Treaty on the Functioning of the EU.
1. The Union shall have exclusive competence in the following areas:
-
(a)
customs union;
-
(b)
the establishing of the competition rules necessary for the functioning of the internal market;
-
(c)
monetary policy for the Member States whose currency is the euro;
-
(d)
the conservation of marine biological resources under the common fisheries policy;
-
(e)
common commercial policy.
-
(a)
- 6.
Article. 2. para. 2, Treaty on the Functioning of the EU (…).
2. When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence.
- 7.
Article. 4. para. 2, Treaty on the Functioning of the EU (…).
2. Shared competence between the Union and the Member States applies in the following principal areas:
(a) internal market;
(b) social policy, for the aspects defined in this Treaty;
(c) economic, social and territorial cohesion;
(d) agriculture and fisheries, excluding the conservation of marine biological resources;
(e) environment;
(f) consumer protection;
(g) transport;
(h) trans-European networks;
(i) energy;
(j) area of freedom, security and justice;
(k) common safety concerns in public health matters, for the aspects defined in this Treaty.
- 8.
In its ruling on the Treaty of Lisbon (…), the Federal Constitutional Court of the Federal Republic of Germany specified its supervision role in the process of the European integration. It emphasised that it is entitled to check the EU acts with respect to the limits of authorisation (ultra-vires-Kontrolle), i.e. whether the EU act is within the limits of authorisation and with respect to inviolability of the essence of the constitutional identity (Kerngehalt der Verfassungsidentität). It is not in conflict with the principle of loyal co-operation. Both identity checks—the national and the EU ones—go side-by-side and the Constitutional Court can rule on non-use of EU law in Germany.
- 9.
We can read: The Court of Justice guards EU law. On the other hand, the Constitutional Tribunal is the Constitution. There may be a potential conflict between the adjudication of the Constitutional Tribunal and the Court of Justice. Taking this into account, it must be stated that, also because of the contents of Article 8 para. 1 of the Constitution, the Constitutional Tribunal is obliged to understand its position in the way that in fundamental issues having impact on the political system, it will maintain the position of the court of last instance in the field of the Constitution of the Republic of Poland. The Court of Justice and the Constitutional Tribunal cannot compete with one another. It is not only about eliminating the phenomenon of duplicating the courts or adjudication on the same legal issues, but also being dysfunctional in the relations between the EU and Polish legal order. It is important to take into account the different roles of the two courts. Admitting the possibility of examining the compliance of EU secondary law with the Constitution, it is necessary to emphasise the necessity of maintaining adequate carefulness and moderation in this area.
- 10.
The Government of any Member State, the European Parliament or the Commission may submit to the Council proposals for the amendment of the Treaties. These proposals shall be submitted to the European Council and notified to national parliaments. If the European Council adopts by a simple majority a decision in favour of examining the proposed amendments, the President of the European Council shall convene a Convention. The Convention shall examine the proposals for amendments and shall adopt by consensus a recommendation to a conference of representatives of the governments of the Member States. The amendments shall enter into force after being ratified by all the Member States in accordance with their respective constitutional requirements. If, two years after the signature of a treaty amending the Treaties, four-fifths of the Member States have ratified it and one or more Member States have encountered difficulties in proceeding with ratification, the matter shall be referred to the European Council.
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Muszyński, M. (2017). Depreciation of State Sovereignty at the Turn of the 21st Century. In: Arnold, R., Martínez-Estay, J. (eds) Rule of Law, Human Rights and Judicial Control of Power. Ius Gentium: Comparative Perspectives on Law and Justice, vol 61. Springer, Cham. https://doi.org/10.1007/978-3-319-55186-9_18
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