Fundamental Rights of States: Constitutional Law in Disguise?
Forthcoming in: Cambridge Journal of International and Comparative Law, 2016.
24 Pages Posted: 19 Oct 2015
Date Written: June 7, 2015
This contribution analyses the development of the doctrine of fundamental rights of states in German international law doctrine. It shows how the doctrine, despite its natural law origins, was able to adapt and flourish in a more positivist environment in the late 19th and early 20th century. It was highly malleable with respect to the uses to which it was put. Accordingly, it was both relied on in order to support National Socialist conceptions of international law as well as to connect with a return to natural law after World War II. With a turn to more pragmatist approaches in German scholarship since the middle of the 20th century the doctrine seemed to have faded away. However, the contribution argues that it has witnessed a somewhat unexpected comeback. Driven by some functional and constructive analogies with parts of the constitutionalisation literature, it is possible to see traces of the doctrine reemerge. In this respect, it may even be said to resemble parts of the recent case law of the German Federal Constitutional Court which has put a strong emphasis on sovereignty and self-determination as limits towards international and European integration.
Keywords: Fundamental rights of states, German scholarship on international law, Natural law, Positivism, Constitutionalisation
JEL Classification: K33, K30
Suggested Citation: Suggested Citation