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La doctrine des droits fondamentaux des États : vers un redéploiement fédéraliste ou étatiste ?

Abstract : This thesis revisits the classical doctrine of fundamental rights of States, and attempts to determine whether it was rightly rejected, or if it could now be redeployed within a more adequate legal framework. In contrast with the so-called relative or accessory rights, which find their source in customary and conventional law, the rights to self-preservation, sovereignty, equality, dignity and mutual commerce are conceived as fundamental in a material sense – because they are inherently linked to the Nation-State and, conversely, a Nation-State could not dispose of them without affecting its statehood –, but they are also conceived in a formal sense – because their violation implies specific legal effects as the rights of the affected State to invoke invalidity of rules found in contradiction of them and, ultimately, to resort to war. In that respect, while classical internationalists hand down to posterity a notable theory of fundamental rights of States, they paradoxically claim to deploy it in the international legal order, which is radically horizontal. Therefore, somehow resisting from doctrinal attacks, the theory of fundamental rights of States was finally abandoned in the second half of last century. Nevertheless, acknowledging the renewed doctrinal interest in state rights, both in international law, in European Union law and in constitutional law, in the context of an evolving international society, the point is to question whether these states’ rights meet the materiel and formal criteria of the fundamentality of rights. In a federalist perspective, namely an institutional protection of state rights, do States obtain, for instance, a protection of their right to survival within the United Nations and a protection of their right to respect for national identity within the European Union ? From a statist point of view, namely a unilateral protection of state rights, if classical internationalists correctly theorize that the alienation of sovereign and identity rights undermine the quality of a Nation-State, does the protection of such rights fall within the international legal order or rather within the national legal order ?
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http://docnum.univ-lorraine.fr/ulprive/DDOC_T_2019_0132_MOTSCH.pdf
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https://hal.univ-lorraine.fr/tel-02462843
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Submitted on : Friday, January 31, 2020 - 3:25:45 PM
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  • HAL Id : tel-02462843, version 1

Citation

Pascaline Motsch. La doctrine des droits fondamentaux des États : vers un redéploiement fédéraliste ou étatiste ?. Droit. Université de lorraine, 2019. Français. ⟨NNT : 2019LORR0132⟩. ⟨tel-02462843⟩

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