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The concept of sovereignty in the modern international law


Author: Vitalie Gamurari
Degree:doctor of law
Speciality: 12.00.10 - International Public Law
Year:2006
Scientific adviser: Nicolae Osmochescu
doctor, professor, Moldova State University
Institution:
Scientific council:

Status

The thesis was presented on the 15 April, 2006
Approved by NCAA on the 29 June, 2006

Abstract

Adobe PDF document – 0.32 Mb / in romanian

Thesis

CZU 341.1/8 G 16

Adobe PDF document 0.90 Mb / in romanian
150 pages

Keywords

sovereignty; state sovereignty; sovereign equality; territorial supremacy; jurisdiction; primacy of international law; humanitarian intervention; implementation; principle; military conflict

Summary

In the conditions of intensification of international relations the international law plays the main part, being a necessary instrument in regulation of a world – contradictory and at the same time unique – in the process of globalization.

Promoting the idea of European integration of Moldova, we must realize at the same time that European community construction had stated from the very beginning the problem of transfer of a part of sovereignty from member states to European communities in certain spheres of their competence. From the start this construction had in its basis a super-national concept.

The international community consists from states which are recognized as being sovereign in their own territorial domain, which means that there should be no super-national organs able to influence their internal legal system or determine the orientation of their regime. In accordance with the norms of international law, sovereignty determines certain prerogatives in the sphere of constitutional provisions. This rule is stated in the United Nations Charter, where article 2 proclaims the principle of sovereign equality of the states.

On the international plan sovereignty cannot be absolute. The international law represents a system of obligations by means of which the states accept some restraints to their freedom of action and finally – their own political autonomy. If legal dimensions of sovereignty are relatively precise, the political aspects are less definite. Actually, the concept of sovereignty affirms a legal equality and political independence of states which remains formal and fictional as much as obeying norms of international law is voluntary and violation of this norms is rarely sanctioned.

The present work has an aim to study the concept of sovereignty from the point of view of modern international law, as well as the problems which arise in front of the states from one side and the international community from another – the problems of determination of the limits of state sovereignty in conditions of globalization process, as well as another problems which appear in this sphere, – and this is up-to-date both from theoretical and practical point of view. The aim of this work consists in the analysis of the concept of sovereignty in the modern international law, starting from the determination of legal nature of one of the fundamental international law principles – sovereign equality of the states; taking in evidence the problems which can appear before a state in the process of exercising its sovereignty, examining the supremacy and jurisdiction of a state; bringing the legislation of the Republic of Moldova in correspondence with international standards and norms by implementing them, studying practice of many states with this aim, especially European ones. One of the basic scopes consists in the determination of the relations between international jurisdiction and state sovereignty, and for this there has been studied the case law practice of the International Court of Justice, International Tribunals for the ex-Yugoslavia and Rwanda, as well as doctrinal works of different scientific schools and UN Committee on the International Law; the problems which arise before the states in the process of ratification of the Statute of the International Tribunal from the point of view of state sovereignty.

The concept of sovereignty in the international law is repeatedly interpreted in accordance with its classical meaning, not taking in consideration the modern tendencies of integration which persist all over the world. Sometimes we have to face the problem of not knowing the importance of the applicability of international law provisions in the internal legal system of a state, especially this concerns judicial organs. The process of the European integration, which started after the Second World War, has imposed the creation of a new legal order, which couldn’t become possible without the revision of classic sovereignty concept.

The scientific innovation of this work consists in the fact that there has been made an attempt to make a profound analysis of the evolution of sovereignty concept, determining its content and limits from the point of view of international law in the modern period. In order to reach this aim there has been made a study of French, Russian, American, Romanian doctrines, as well as legal practice of certain international courts, especially the International Court of Justice. There has been made an attempt to examine certain domains traditionally internal of the states from the point of view of international law; in the course of the study there had been declared own position concerning the problem of humanitarian intervention, which also served as an object of study, and concerning the international constraint.

Coming from the fact that there is a close link between the principle of sovereign equality of states and pacta sunt servanda, there was effectuated a study concerning the implementation of the international law provisions in the legal order of the states and the problem of international responsibility in case of non-execution or not corresponding execution of obligations. In aim of bringing the legislation of Moldova in accordance with international standards, there have been made suggestions concerning modifications to the RM Constitution, Criminal Code; measures directed to ratification of the Statute of the International Tribunal.