19 May 2014

Shared Responsibility and the Federal State

Federal States in international law

To the international lawyer at least, the idea of a federal State, which distributes its sovereign competences between different internal orders of government, is generally irrelevant: how a political community structures its internal relations has nothing to do with how its sovereignty as a State is exercised externally.

The classical international legal fiction is that a State is a ‘black box’: whatever internal arrangements may have been devised, the federal State alone is responsible for international relations, and alone is a subject of international law. The ‘black box’ metaphor is rooted in the very idea of State sovereignty, as the Permanent Court stated in its very first judgment, in the Case of the S.S. Wimbledon: the capacity ‘of entering into international relations is an attribute of sovereignty’.[1] But it is not merely a metaphor or fiction: the centralisation of the capacity to act externally has been constitutive of a great many theories about the nature of international law as a system, not least Article 27 of the Vienna Convention on the Law of Treaties, which precludes that a State may evade its international obligations by invoking its internal law.

Despite this, the research question arose: to what extent are the acts of a federated entity cognised at international law? The question is relevant from both municipal and international perspectives. There are indeed several federal States whose component entities act on the international plane. (more…)