Sovereignty and the Right to Be Left Alone: Subsidiarity, Justice-Sensitive Externalities, and the Proper Domain of the Consent Requirement in International Law
SOVEREIGNTY AND THE RIGHT TO BE LEFT ALONE: SUBSIDIARITY, JUSTICE- SENSITIVE EXTERNALITIES, AND THE PROPER DOMAIN OF THE CONSENT REQUIREMENT IN INTERNATIONAL LAW
MATTIAS KUMM 0 1
0 Copyright © 2016 by Mattias Kumm. This article is also available at
1 Inge Rennert Professor of Law, New York University; Managing Director of the Center for Global Constitutionalism, WZB Social Science Center Berlin & Research Professor for “Rule of Law in the Age of Globalization” Humboldt University, Berlin. 1. See generally Eyal Benvenisti, Sovereigns as Trustees of Humanity: On the Accountability of States to Foreign Stakeholders , 107 A , USA
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restrict what states may do and impose its own solutions. As a matter of positive
international law, such an understanding of subsidiarity espouses the idea that
sovereign states, as the primary building blocks of the international legal
system, establish the institutional framework within which citizens practice
collective self-determination. Reasons for the prima facie prioritization of states
as sites for collective self-determination are numerous: they range from the
virtues of relative decentralization of power to respect for local identities and
preferences.2 There are also, of course, many reasons for legally restricting a
state’s authority and empowering more centralized institutions, which this
article will analyze. Nonetheless, any conclusive justification offered for
centralizing regulatory authority must also reflect concerns for the advantages
of local decisionmaking and strike a plausible balance between competing
concerns. The principle of subsidiarity as a general architectural principle
should be seen as structuring the process of justifying restrictions on state
sovereignty by international law.3
Questions of jurisdiction and potential violation of the principle of
subsidiarity in international law can arise in a wide range of contexts. Such
questions have traditionally been associated primarily with substantive concerns
regarding allocation of power and authority: Are there, for example, compelling
justifications for a specific regulatory issue to be addressed on a more central,
rather than a more local level? Are there compelling reasons for the EU to
strike a balance between the rights of those who want to smoke in public places
and the right of those who wish to not be burdened by the effects others’ smoke
in public, or should such a decision be left to the Member States?4
Questions about the form of involvement by the local or central authority
are also relevant to such an analysis. For example, provided that there are good
reasons for international law to establish some protections for outsiders who
face risks relating to the civil use of nuclear energy by neighboring states,
should such protections be procedural only,5 or should international law
establish minimum standards that any civilian’s use of nuclear energy must
comply with? In such a scenario, is only the first approach compatible with
subsidiarity, or is there a good justification for the more intrusive,
minimumstandard approach?
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The principle of subsidiarity should also be understood to have a procedural
dimension in addition to its substantive aspects. The specific procedure used to
authoritatively decide policy questions relating to subsidiarity is often itself an
issue that must be resolved with subsidiarity concerns in mind. Procedural
subsidiarity concerns are weakest if the generation of an international legal
obligation depends on that state’s consent, as is the case in the ordinary
treatymaking process. Nonetheless, even if a state specifically consents to such a
restriction on its freedom of action, such a decision might still raise substantive
subsidiarity concerns. Perhaps a Member State government only agreed to
support, say, an EU measure prohibiting smoking in public spaces, because the
political costs of imposing such a ban as a national measure would have been
high or because the international process provided a welcome opportunity to
impose a desired policy result on other states as well. Those reasons are not
good reasons justifying the centralization of regulatory decisions. But even if
substantive subsidiarity concerns do not disappear just because a government
gives its consent, actual consent requirements still mitigate procedural
subsidiarity concerns by giving a state the possibility to escape regulation by
vetoing it. Subsidiarity concerns become stronger when the state is only one
actor among others in the juris-generative process and when consent is no
longer a necessary requirement for a state to be bound, as is the case, for
example, with regard to customary international law (CIL) or majoritarian
decisionmaking within treaty-based regimes. Subsidiarity concerns become
stronger still when the role of states is even more marginal, as is the case, for
example, with binding decisions of the United Nations Security Council for the
great majority of (...truncated)