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State as a Giant with Feet of Clay

Jan Kysela

Many contemporary states, even the European ones, resemble a giant with feet of clay. They tend to be greater in terms of the scope of governance, rather than in terms of their territory or population. Since they are great, they are also costly, though often very limited in various respects. One perilous alternative is the state-giant of Thomas Hobbes. But there are other possibilities as well, such as the liberal state, effective, yet small or lean; or the dreamt-up state of the conservatives, based on the principle of subsidiarity, acting only as a complement to civil society. The fundamental thesis in this book is that the states in which we live are great, however weak. The book then discusses the main categories of limits on state power, such as human rights, international law, EU law and societal changes.
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International law limits on state power Limitation of state power by international law at the beginning of the 21st century


← 42 | 43 → Pavel Ondřejek

International law limits on state power. Limitation of state power by international law at the beginning of the 21st century

Modern international law, as it emerged at the end of the Thirty Years’ War, gave rise to conditions for the co-existence and co-operation of states.1 During this period a purely power-based view of international relations underwent a transformation and gradually the concepts of state sovereignty, international liability and other important attributes of international law developed. Whenever speaking about the sovereignty of states it is necessary to remember that this is a relative concept, as even sovereign states were limited by obligations that they took on within their autonomous law-making processes.2

An important development in international law commenced after the Second World War (for L. Weinrib this period was characterised by its acknowledgment of the innate human dignity of every person without exception and a focus of the legal order on human rights and natural law values; she refers to this as the “postwar paradigm”).3 Within international law the first catalogues of human rights were adopted as well; the importance of these rights was then further elaborated by the judgments of the International Court of Justice,4 as well as the decisions ← 43 | 44 → of other emerging judicial and quasi-judicial bodies. The importance of human rights obligations arising from international law increased significantly after the International Court of Justice constructed the doctrine of obligations of states erga omnes, on...

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