Sovereignty and the Right to Be Left Alone: Subsidiarity, Justice-Sensitive Externalities, and the Proper Domain of the Consent Requirement in International Law

Law and Contemporary Problems, Jun 2016

Mattias Kumm

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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 I - 240 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? No. 2 2016] 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)


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Mattias Kumm. Sovereignty and the Right to Be Left Alone: Subsidiarity, Justice-Sensitive Externalities, and the Proper Domain of the Consent Requirement in International Law, Law and Contemporary Problems, 2016, pp. 239-258, Volume 79, Issue 2,