Sovereign Rights of the State and the Scope of their Implementation in the Context of Development of the International Human Rights Law
Abstract
In the contemporary science of international law, the state sovereignty issue lacks adequate treatment. In particular, the list and essence of sovereign rights and duties of the state are not defined, although these are referred to in some international legal instruments and resolutions of international courts and arbitrations. In addition, particular circumstances are being under development, which require if not precise outlining of the catalogue of fundamental rights of states, then at least determining the essence of some of these rights and the scope of their implementation. It goes about developing the practice to limit specific sovereign rights of the state to ensure the implementation of human rights (notably, the ones not directly related to the respective rights of the state). In this very way, the state is limited in its right to determine its own immigration policy. The fact is that the European Court of Human Rights (ECtHR) has ruled in some of its judgments that by implementing this right, the state violates the right to respect for private and family life provided for by the Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (ECHR). This resulted in ECtHR`s practice to be somewhat considered in the draft articles on the expulsion of aliens elaborated by the International Law Commission (ILC) in 2014. The examples from ECtHR`s practice analyzed in this paper provide the basis for the conclusion that the development of the International Human Rights Law is gradually narrowing the scope of the internal sovereign rights of the state.
References
[2] Butkevych, V.G. 2004. Individuals with Special Legal Status. In Butkevych, V. G. (Eds.), International Law. Key Areas, Lybid, 179 – 190.
[3] Case concerning the Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua). Summary of the Judgment of 13 July 2009, https://www.icj-cij.org/files/case-related/133/15331.pdf (accessed at 04.02.2020).
[4] Draft articles on the expulsion of aliens, with commentaries 2014. United Nations, 2014, 53 p.: http://legal.un.org/ilc/texts/instruments/english/commentaries/9_12_2014.pdf (accessed at 04.02.2020).
[5] The Human Dimension of the OSCE: An introduction. OSCE Human Dimension Commitments. OSCE/ODIHR, Warsaw, 2011, Vol. 1: Thematic Compilation, xv-xxiv. https://www.osce.org/odihr/76894?download=true (accessed at 04.02.2020).
[6] Koretsky, V.M. 1989. Declarations on the Rights and Duties of States. In Denysov V.N. (Eds.) Koretsky, V.M. Selected works, Vol. 2, Naukova dumka, 239 – 305.
[7] Koretsky, V.M. 1989. Problem of ‘Fundamental Rights and Duties of the State’ in International Law. In Denysov V.N. (Eds.) Koretsky, V.M. Selected works. Vol. 2, Naukova dumka, 200 – 213.
[8] Liu v. Russia, no. 42086/05, ECHR, 6 December 2007, http://hudoc.echr.coe.int/eng?i=001-83824 (accessed at 04.02.2020).
[9] Liubashenko, V. I. 2017. Responsibility to Protect Concept as a Guarantee for Human Rights Protection in International Law (Thesis for the degree of Candidate of Sciences in specialty 12.00.11 – International Law, National University ‘Odessa Law Academy’), 22 р. http://dspace.onua.edu.ua/bitstream/handle/11300/8782/Liubashenko_AKD.pdf?sequence=1andisAllowed=y(accessed at 04.02.2020).
[10] Lukashuk, I.I., and Vasy`lenko, V.A. 1971. (Eds.), International Law, Vyshcha shkola.
[11] PCIJ Judgment: Legal Status of Eastern Greenland (Den. v. Nor.), 1933 P.C.I.J. (ser. A/B) No. 53 (April 5) http://www.worldcourts.com/pcij/eng/decisions/1933/1933.04.05_greenland.htm (accessed at: 04.02.2020).
[12] Romanov, V.A. 1996. Concept of Fundamental Rights and Duties of States between Two Ages. Moscow Journal of International Law 4, 175-179.
[13] Yakovyk, I.V., and Shestopal, S.S. 2017. The Sovereign Rights and Sovereignty of the State: The Problem of the Correlation. Azimuth of Scientific Research: Economics and Administration Vol. 6, № 4 (21), 381 – 387, https://cyberleninka.ru/article/v/gosudarstvennyy-suverenitet-i-suverennye-prava-problema-sootnosheniya (accessed at: 04.02.2020).
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