Is There Any Room for the Doctrine of Fundamental Rights of States in Today's International Law?
Cambridge Journal of International and Comparative Law, Vol. 4, 2015, pp. 467-481
16 Pages Posted: 18 Oct 2016 Last revised: 10 Feb 2017
Date Written: November 30, 2015
This article serves as a general substantive introduction to the special issue on the fundamental rights of states in international law. It introduces the concept in theoretical and doctrinal terms, and lays out the questions that will be addressed by the contributions to the special issue. These questions include: 1) What do attributes like ‘inherent’, ‘inalienable’ and ‘permanent’ mean with regard to state rights?; 2) Do they lead to identifying a unitary distinct category of fundamental rights of states?; 3) If so, what is their source and legal character?; 4) What are their legal implications, eg, when they come into conflict with other obligations of the right holder or with the actions of other states and international organisations?; and ultimately, 5) Is there still room in today’s international law for a doctrine of ‘fundamental’ rights of states? The article reviews the fundamental rights of states in positive law sources and in international legal scholarship, and identifies the reasons for a renaissance of attention for this doctrine.
Keywords: Fundamental Rights of States, International Law, Positivism, Natural Law, Kelsen, Public International Law
JEL Classification: K33
Suggested Citation: Suggested Citation